Jeffrey Mills Solicitors
JEFFREY MILLS SOLICITORS
- Common Family Law Myths
March - May 2018
There are many myths that surround Family Law.
Hannah explains the truth behind them.
1. I can have a “quickie” divorce.
The reality is that there is no such thing.
You cannot obtain a divorce at all within the first year of marriage. After that, the procedure for all divorces is much the same.
The media often report about celebrity “quickie” divorces, but what they are referring to is the actual pronouncement of the Decree Nisi, which takes minutes. However, before this, all petitions will have had to have been drafted, issued by the court, served upon the Respondent, and the actual Decree Nisi applied for.
Once the Decree Nisi has been pronounced, the Petitioner must wait 6 weeks and 1 day before they can apply for the Decree Absolute, which is the stage at which the divorce is finalised.
This whole process usually takes around 6 months.
2. I can get divorced on the grounds of irreconcilable differences.
Irreconcilable differences is an American term.
There is actually only one ground for divorce in England and Wales, and that is that the marriage has irretrievably broken down.
To prove this, the Petitioner has to rely on one of five facts;
- Unreasonable behaviour
- 2 years separation with consent
- 5 years separation
3. If my spouse committed adultery, I will get more in the financial settlement
This is not true.
The facts cited in the divorce petition are of no consequence in the financial side of things.
The court does not financially reward or penalise people based on the reasons for the divorce, they have to take into account both parties respective financial needs.
4. We are not married, but live together, therefore we are ‘common law’ spouses and have the same rights as married couples.
If you are not married, you do not have the same rights as a married couple.
Cohabiting couples will only have an automatic claim over any property or assets that are owned in the couples joint names.
Other than that, couples would have to rely on fairly vague and complex trust law.
Some protection can be offered where there are children of the relationship, and the courts can make orders to protect the home for the child(ren) until they reach the age of 18 or finish full time education.
If you do not wish to marry, the best way to protect your interest is to have joint ownership, declarations of trust and/or cohabitation agreements.
5. Once I am divorced, no financial claims can be made.
The Decree Absolute signifies the end of the marriage. It does not automatically protect your financial position, as finances are actually a separate process to the divorce.
In order to prevent future claims, you will need to enter into a Consent Order which provides a clean break.
Even if there are no assets at the time of divorce, it can be advisable to enter into a clean break Consent Order to protect any future assets you may acquire.
6. Children will always live with the mother
The general principle is that the court will first look at who has been the child’s primary carer.
However, the court is guided by what is in the childs best interests, and the use of shared care is becoming more common, if it is practical and not too disruptive for the child.
7. If something is owned in my sole name, my spouse will have no claim over it.
If you are married, any assets owned by either party, whether in joint or sole names, will be considered a matrimonial asset and will form part of the matrimonial pot to be divided between the parties.
This includes business assets.
8. Pre-nuptial agreements are not legally binding.
It is correct that pre-nuptial agreements are not automatically legally binding in England and Wales. They are being recognised in more and more cases, and are likely to have some bearing on a case, particularly when they have been drafted properly and both parties have received legal advice.
They can be of particular value in second marriages when one party wishes to protect assets they are bringing to the marriage, for the benefit of their own children for example.
If anything mentioned has made you question your position Hannah and the team at Jeffrey Mills Solicitors are available to discuss matters in greater detail and relate them to your situation.
Should you require legal assistance from a firm with family values and a fresh approach, contact Jeffrey Mills Solicitors.
Tel: 01480 219600