‘Take him to the cleaners,’ common law man and wife, a quickie divorce, David Milburn, Managing Partner at the Stowe Family Law office in Harrogate shares his top 10 myths about divorce.
With my years of experience as a divorce lawyer, I have learnt to always expect the unexpected. But the thing that surprises me repeatedly, is just how many myths there are surrounding divorce and family law. Myths that have become folklore in modern society but are usually completely incorrect in the eyes of the law.
Here are my top 10 (in no particular order).
1, You can get divorced in twelve weeks
A very tempting marketing strapline but there is no such thing as a quickie divorce. Best case scenario the courts will take around four months, although more likely six months, to complete the divorce but it can be longer.
2, It’s not possible to have a divorce without someone blaming the other
It is possible but ONLY if you have been separated for two years (and both agree to the divorce) or over five years (just one person wants to get divorced). If not, then yes, one person will have to blame the other (usually unreasonable behaviour or adultery).
3, Prenups and postnups are legally binding
Whilst they are ‘worth the paper they are written on’ they are not automatically legal binding in England & Wales. If a prenup is done properly and fairly then there is a good prospect that it will be upheld by the court at a later date. It’s crucial to get advice from a solicitor as they can be complicated to draft and there are various criteria that need to be fulfilled to stand the best chance of it being upheld.
4, You will get a better settlement if your spouse had an affair
Whilst adultery is grounds for divorce there is no financial compensation for adulterous behaviour. The courts are more interested in finding a fair solution that meets the family’s needs.
5, A common law wife has the same rights as a married wife
A common law marriage is complete fiction however long a couple live together. In fact, cohabiting couples have very little legal protection if the relationship ends. There are some ways to protect yourself and again advice should be sought from a solicitor.
6, You can’t commit adultery if you are separated
You can. If you are separated but not yet divorced and start a new relationship with a person of the opposite sex, this is adultery. This can be used to form the basis of a divorce petition.
7, Being divorced means you have no more financial claims on each other
This one always shocks people but without a financial order you are still financially tied together and open to further financial claims even when you are divorced. So, say you inherit well in 10 years, your ex could make a claim for a proportion of the money.
8, Unmarried fathers have no rights
Not the case. Unmarried fathers have various rights in relation to their children and can make an application to the court if necessary. Also, if his name is on the birth certificate he will automatically have Parental Responsibility which are the legal rights, duties and responsibilities in relation to the child /ren.
9, If your ex-partner does not pay maintenance you can stop him from seeing the kids
No, you can’t. The court sees child maintenance and child custody as two separate issues. You cannot use one to influence the other. And it works both ways, in that if you have been denied visitation you cannot stop maintenance payments.
10, Most financial settlements are split 50/50
There is no set formula for dividing assets in a divorce. An equal sharing is often a starting point but there are many other factors to consider. If a couple cannot agree then a court can make the decision.
Do any of these issues affect you?
If are considering a separation or divorce please do seek legal advice or get in touch here. The best divorce advice is to get legal advice and get it early before any decision making.
Read our step-by-step guide on how to get divorced here.