Common misconceptions about divorce

As with all things legal, people tend to have preconceived ideas as to what is right and what is wrong. Often someone heard something from a friend of a friend and accepts it as gospel truth. Just be careful in doing so. Not everything is always as black and white as it seems.

Here are eight examples that we often hear:

1. A “quickie divorce” takes 12 weeks

Often used as a marketing tool to get you hooked in. In practice however there is no such thing as a “quickie divorce”. There are divorces which are simpler than others, where for example the parties are agreed on the financial aspects and there are no children involved. However, the Courts move slowly and we would estimate the quickest divorce to be around four to six months

2. It is 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. Prenuptual agreements and postnuptual agreements are not legally binding

Whilst technically correct in England and Wales, that is not to say that they are not worth the paper that they are written on.  If such an agreement is drawn up properly and fairly then there is a good prospect that it will be upheld by the court at a later date.  It is 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 or treated you unreasonably

Whilst adultery and unreasonable behaviour are both grounds for divorce there is usually no financial compensation for adulterous or unreasonable 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

There is no such thing as a common law marriage and therefore, no such thing at law as a common law wife. Parties must either be married at law or be in a civil partnership (possible for both same sex and different sex raltionships sine the 1 st January 2020).  If, however, you are co-habiting, there are some ways to protect yourself (for example a co-habitation agreement) and advice should be sought from a solicitor regarding the same.

6. Being divorced means you have no more financial claims on each other

Not true unless you have a financial order in place. If you do not, 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 or win the lottery, your ex could make a claim for a proportion of the money if no financial order was finalised.

7. If your ex does not pay maintenance you can stop them from seeing the children

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.

8. Most financial settlements are split 50/50

Whist there is formula for dividing assets on divorce an equal sharing is often a starting point. There are however many other factors to consider. If a couple cannot agree then a court can make the decision.