In family law, there are a variety of myths and misconceptions that arise on a continued basis and that really need to be debunked.
Some of the more common misconceptions are as follows:-
There is no such thing as Common Law marriage
That by virtue of you living with a partner for a minimum period of time and therefore embarking on this “common law marriage” you acquire the same rights as a married couple. There is no such title in the law as a common law marriage and no matter how long you may cohabit, you do not acquire rights over your partners sole savings, investments, property, or pension, nor do you have a claim for maintenance. Any such claim for maintenance will only arise when you have children together whereupon this is governed by the Child Maintenance Service and such liability will be calculated in accordance with the formula for this. Nor do you acquire any automatic entitlement to the property in which you cohabit. Any such claim can only be established upon a consideration of trusts and property law and require detailed evidence on any agreement that you have reached with your partner, any financial or non-contributions and the relationship history.
The court will take into account who was at fault when determining a financial settlement
It is a fallacy that if one spouse is to blame for the divorce, then the other spouse will be financially compensated for this. This is not the case, and conduct is irrelevant for the purposes of the financial settlement, unless it is “gross and obvious” and “that conduct is such that it would in the opinion of the Court be inequitable to disregard it”. The threshold for this is very high and so in the vast majority of cases, conduct has no part to play within a financial settlement, and the court will only consider the other considerations set out in the section 25 criteria of the Matrimonial Causes Act, those being the resources of each of the parties, their respective needs, the length of the marriage and ages of the parties, the standard of living enjoyed by the parties during the marriage, their respective contributions, their mental or physical incapacity if appropriate, and the value of any benefit which either will lose the chance to acquire upon a divorce.
One party needs to be at fault for the purposes of a divorce
This is incorrect in that since 6 April 2022, an application for a divorce can be made on a ‘no fault’ basis, as long as it is stated by the applicant that the marriage has irretrievably broken down, you have been married for over a year and your marriage is legally recognised in England and Wales. The recipient of the divorce application, known as the Respondent cannot defend the divorce save on jurisdictional grounds, i.e. that the parties do not have sufficient connection with England and Wales, such as neither spouse being domiciled, or habitually resident in England and Wales.
There is a winner and a loser in child family law cases
This is a concept portrayed in TV, film and the tabloids and yet is entirely unsubstantiated. The primary focus and priority of the Court will be to make a Child Arrangements Order that is in the child’s best interests. This will be decided upon a consideration of the factors set out in the Welfare Checklist, at section 1(3) of the Children Act 1989 and these are entirely child focused.
As you are divorced, your former spouse has no financial claims against you
No matter how long you may have been divorced, the fact that you have a final order of divorce, does not protect you from income and capital claims being made against you, by your former spouse. The only way to prevent this is to have a financial Consent Order approved by the Court setting out the terms of the financial settlement. This sets out how assets such as savings, property, pensions and investments are to be divided upon divorce, and whether there is to be an income and a capital clean break settlement.
Nuptial agreements are not legally recognised in England and Wales
Pre and post-nuptial agreements are legal here, however, they are not automatically enforced by a court. It will only be if certain requirements are met that they may be upheld by the Court. Such requirements will be that it satisfies the parties’ and a child’s financial needs, there has been full financial disclosure, it has been entered into at least 28 days before the marriage, there can be no suggestion of coercion or duress, and each party is to take independent legal advice before entering into the agreement.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
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