We thought it might be of interest to shed some light on some common myths regarding Family Law:-
- Is there such a thing as a Common Law Husband/Wife?
No, there is no such thing as a common law husband or wife. Unless you are married the law does not protect you if you simply live together, regardless of how long you have been together. To acquire legal rights you have to rely on trust law or marry/enter into a civil partnership.
- I am divorced so my Decree Absolute protects me from a financial claim from my former spouse
This is not the case. A final order in divorce (previously called decree absolute) merely ends the marriage, it does not provide a final order in relation to financial matters. The only way you can obtain a final order relating to financial matters following the breakdown of the marriage is to obtain an order approved by the Court which is only effective upon receipt of a final divorce order. In the absence of a ‘clean break’ financial order you are vulnerable to future claims.
- Can I get a “quickie” divorce
Under the new divorce law by reason of the Divorce, Dissolution and Separation Act 2020 there is a period of 20 weeks from the date of issue of the divorce application during which the divorce cannot be progressed. This period of time enables discussions to take place between the parties in relation to financial matters and any children of the family. After the expiry of the 20 week period the applicant can apply for a conditional order which is the first stage of the divorce and 6 weeks and 1 day after pronouncement of the conditional order they can apply for a final order.
- I want my husband/wife out of the house, so can I just change the locks.
If the property has been occupied by you both as the family home/shared home during the marriage/civil partnership you both have a legal right to remain in the home and one party cannot be excluded from that property unless a Court orders it. This is regardless of whose name the house is registered in.
- The courts prefer children to stay with their Mum. Dads are at a disadvantage in the court process.
There is no judicial preference for children to automatically live with their mothers on separation. The courts are guided by what is in the children’s best interests and take into account maintaining the status quo which refers to the current or existing arrangements in place for the child. Therefore, if a child’s primary residence is with their mother and a Court decides these arrangements should continue, this is usually to maintain the status quo for the best interests of the children rather than a preference for the children to be with their mother.
- If one spouse is at fault for the breakdown of the marriage the court will take this into account when determining financial settlement.
With the introduction of the Divorce, Dissolution and Separation Act 2020 the divorce law has changed from 6th April 2022. It is now no longer necessary to blame the other party for the breakdown of the marriage and the divorce can proceed on the basis that the marriage has irretrievably broken down. Unless in very exceptional circumstances, the behaviour of one party in the marriage does not determine the outcome of financial matters.
- Pre-Nuptial agreements are not recognised in England and Wales
Nuptial agreements (pre-nups or post -nups) are legal here although they are not legally binding in Court. Practically this means that whilst they are not automatically enforceable in Court, provided that certain requirements are met a nuptial agreement may be upheld in Court. Since the 2010 case of Radmacher and Granatino the Court should give effect to a nuptial agreement that is freely entered into by each party with a full understanding of its implications unless it is unfair to hold the parties to the agreement. Specific formalities that a pre-nuptial agreement should meet are:-
a) Must not try to contract out of responsibility for the financial needs of any children
b) Each party must disclose to the other sufficient detail of their financial position including any pre-existing and/or inherited wealth and to answer any reasonable questions that the other may have
c) It should be signed at least 28 days ahead of the wedding
d) There must be no suggestion of duress, fraud, undue influence, misrepresentation or mistake before entering into such an agreement and each party should have independent legal advice before signing. On divorce there will always be scope for argument as to whether or not a pre-nuptial agreement should apply
- My Husband has a pension and he is going to give me a lump sum so that I do not make a claim against it. Is that fair?
Untangling finances during a divorce can be difficult and the division of pensions can be very complex. The Court has to consider all the circumstances of the case and where there is inequality of pension provision the Court may order a pension to be ‘shared.’ Alternatively, it may be appropriate to award one party a greater share of the tangible assets in lieu of a pension sharing order. Both financial advice and the advice of a pension expert is usually required in addition to legal assistance. The benefit of the pension in relation to divorce can be significantly different from the pension benefit on an annual pension statement. Specialist advice should be taken before deciding how to deal with your spouse’s pension.
If you need help with any aspect of family law contact RJT Solicitors for a free 30 minute no obligation consultation on 01257 228027 or email: rachel@rjtsolicitors.co.uk
