10 Important Truths to Common Family Law Myths
Family Law in the UK can be very complex, so it is important to separate the truth from the myths. Here, our experienced solicitor Richard Busby considers the reality of 10 common misconceptions.
I have been a family solicitor for over 10 years now and it is often the same myths that come up time and time again. Very often, a client will come in having taken some “advice” from a friend who has been in a “similar situation”. It can however do more harm than good to listen to well-meaning friends and family who rely on stereotypes, drawing on their own circumstances or others’ experiences.
The fact is that Family Law in this country is complex: no two cases are exactly the same and usually some expert legal advice goes a long way. Here, I expose 10 of the most common myths, so you can know what to expect when you require legal advice in future.
Myth 1: My husband/wife committed adultery so the Court will give me more of the assets
Reality: The reason why the marriage broke down is usually irrelevant to how much each side receives. The Court is not interested in punishing the respondent in the divorce, it’s concerned with finding a fair solution that meets people’s needs.
Myth 2: I want a divorce on the grounds of irreconcilable difference
Reality: It may have been good enough for Brad and Angelina but ‘irreconcilable differences’ is not a ground for divorce in England and Wales. In order to petition for divorce here you need to demonstrate that the marriage has ‘irretrievably broken down’ as a result of adultery, unreasonable behaviour, 2 years desertion, 2 years separation (with your spouse’s consent) or 5 years separation (if they do not give consent).
Myth 3: If I wait 2 years then I am automatically divorced
Reality: There is no means of obtaining an automatic divorce. It does not matter whether you wait 20 years, if you are married, you are married and you will have to request a divorce before you are free to remarry.
Myth 4: I can get a “quickie” divorce
Reality: You cannot under any circumstances divorce within the first year
of marriage. After that, the procedure for all divorces is much the
same. The media report celebrity quickie divorces at their Decree Nisi
stage, but usually ignore the fact that they have to wait another six weeks before
obtaining Decree Absolute, so they are still married.
Myth 5: I am not married but I am a common-law wife/husband so my rights are protected
Reality: There is no such concept as a common-law marriage. It does not matter how long you have been together, if you are not married you will not have acquired any legal rights to your partner’s possessions. To acquire legal rights you have to rely on Trust Law, or must marry/enter into a civil partnership.
Myth 6: I am divorced so my Decree Absolute protects me from financial
claims
Reality: Your Decree Absolute will simply end your marriage. It will not
prevent a court from dealing subsequently with your former spouse’s financial
claims. Even if you entirely agree about what should happen and you have
implemented that agreement, for example by selling the family home and dividing
the proceeds between you, you should still have that agreement recorded in a
final and binding court order, known as a Consent Order. The
case of Wyatt and Vince highlights this.
Myth 7: It’s not adultery as we are separated
Reality: As long as you are still married, a sexual relationship with a new partner of the opposite sex is adultery in the eyes of the law. This means that until you obtain a Decree Absolute, you are still technically married and committing adultery.
Myth 8: Pre-Nuptial Agreements are not worth the paper they are written on
Reality: Although they are not strictly binding in England and Wales, they are
a compelling factor for a court to consider on divorce as long as they are
properly prepared. They can save a lot of money in the long run, but don’t
be tempted to download one from the internet: they require expert advice
and input if they are going to be given full weight by the court.
Myth
9: I want my husband/wife out of the house so I am going to just
change the locks
Reality: If a property is jointly owned, you do not have a right to change the locks on a family home (rented or owned), provided it has been the shared home during the marriage/civil partnership. You both have a legal right to be in the home and one spouse cannot be excluded unless a court has ordered it.
This will apply regardless of whether one or both of you own or rent the home and even where one spouse has left the home through choice. If you feel at risk due to domestic violence or abuse you can apply to Court for an ‘Occupation Order’ which will exclude one spouse from the home.
Myth 10: I am not married, but I am on my child’s birth certificate
so I have parental responsibility
Reality: That is only the case for children born after 1st December
2003. If your child was born before then, and you never married the
mother, you will not automatically have parental responsibility even if you
were named on the birth certificate. You can only acquire that legal
status by making an application to the court or entering into a Parental
Responsibility Agreement with the mother.
Family Law can be very tricky. Some of these examples may surprise you and there are many more. It is always best to take legal advice when dealing with any family issues.
Our family solicitors, based in Leigh-on-Sea and Rochford, are experienced in advising people on how to handle any problem they are facing, from divorce and separation to fertility law. If you need dedicated advice, call us today on 01702 477106 or email info@gileswilson.co.uk.
