We wrote last week about how the press accuses the family courts of being secretive, and we looked at the moves underway to improve public understanding of the system. With that background, we thought it would be interesting to have a brief look at some popular misconceptions about family law. Here are our top 10 myths and the realities behind them.
1. First place has to go to the “quickie divorce” – that favourite phrase used whenever a celebrity couple are getting divorced. Most recently when Nigella Lawson and Charles Saatchi split, the Daily Mail headline was that they were divorced in 70 seconds. In reality what the press were reporting on was the pronouncement (i.e. reading out the names) of the decree nisi in court by a judge, which is a normal part of all divorces. In reality, proceedings for divorce or dissolution usually take around 4 to 6 months once the petition has been issued at court. If the divorce is not defended then it can be a reasonably smooth process from issue to the pronouncement of decree nisi, but the divorce does not actually become final until decree absolute which has to be applied for 6 weeks or more later, and so the couple are still married until then.
2. Coming in a close second is that old chestnut, the “common law spouse”. King George II (about whom history has not always been kind) abolished the doctrine of common law wives in 1753. Therefore, however long you may live with your partner, you will not gain any status as their spouse, and have not been able to do so for 260 years. The law relating to cohabitants is complex, as our regular readers will know. Our factsheet can be downloaded here.
3. “It’s not adultery if we’re separated”. Actually, it is. If you are still married and have sexual intercourse with a person of the opposite sex whether you are separated from your spouse or not, it is adultery in the eyes of the law, and can form the basis of a divorce petition.
4. “My spouse won’t agree to give me a divorce, so I cannot get one”. This myth seems strangely persistent. If you petition on the basis of adultery, then you do need evidence of that adultery which is usually supplied by your spouse answering “yes” to a question on a court form; or if you base it on 2 years separation they need to consent. However unreasonable behaviour does not need to be admitted, and whilst it is possible to defend a divorce and ask the court to declare that the marriage has not broken down, and must carry on, we have yet to see the court refuse a divorce in our combined 60 years of practice. In reality whilst there may be initial objections, most people eventually accept the situation and co-operate. There are also ways to move matters forward in the face of a refusal to co-operate – we can advise you on this if it is relevant to you.
5. “Irreconcilable differences”. It is common for people to want to divorce on the basis of their irreconcilable differences. It is possible to do this in Australia and parts of America where no-fault divorces are available, but not (sadly) in England and Wales. To get a divorce you have to show that your marriage has irretrievably broken down as a result of adultery, unreasonable behaviour, desertion, 2 years’ separation (with your spouse’s consent) or 5 years’ separation.
6. “Fault affects the financial settlement”. Apart from in extreme cases, the reasons for the relationship ending are usually irrelevant to what share of the family assets each spouse receives. The court is not usually interested in punishing the person allegedly at fault in the marital breakdown; instead it is concerned with finding a fair solution that meets the family’s needs.
7. “The honeymoon was hellish, I’m off”. Whilst you can separate as soon as you like, you must wait one year from the date of the marriage to file a divorce petition.
8. Lawyers want to get you into court. Not generally so. Family lawyers who are members of Resolution sign up to a code of conduct that ensures a non-confrontational approach is taken wherever possible. Whilst there are cases where court may be the best, or the only option, many cases can be resolved through mediation, collaborative law, arbitration, or negotiations. At CFLP we are committed to finding the best way of resolving matters for each family’s needs. A summary of options can be found here.
9. Pre-nuptial agreements. Common misconceptions about these tend to be either that they are “not worth the paper they are written on” or that they are fully binding. The reality is somewhere in between. Whilst you cannot exclude the power of the court to decide on a fair settlement on divorce, if an agreement is fair, a court will be likely to uphold it. See our factsheet here.
10. “You need a solicitor to get divorced.” Not always. You can represent yourself, and we are seeing more people doing this. Whether it is wise for you to do so is another matter. If you have any questions about representation, do get in touch.
There are plenty more myths out there. If you would like to talk anything through please give Adam, Sue, Gail or Simon a call on 01223 443333.