10 myths and misconceptions in family law

If I obtain a Decree Absolute there can be no future financial claims

• In order to prevent future claims you need a clean break consent order
• Even with minimal or no assets this is advisable to prevent claims on future assets e.g. inheritance/lottery winnings

I want to obtain a divorce based on irreconcilable differences

• This is not a recognised ground for divorce in England and Wales
• There are 5 grounds for divorce; adultery, unreasonable behaviour, 2 years separation with consent, 5 years separation and desertion
• The separation grounds are the only ‘non fault’ based grounds available and if you have not been separated for this period of time your only option is to proceed on a ‘fault’ based ground

If the other party has committed adultery it will affect the financial outcome

• The ‘fault’ cited in the divorce is of no relevance to the finances
• The Court has to consider both parties needs irrespective of fault
• The only fault that is of relevance in financial matters is if it is directly linked to the financial matters e.g. gambling, reckless spending

We are not married but we are living together and so I have rights as a common law wife

• Perhaps one of the biggest myths in family law, a poll in 2008 undertaken by Parliament confirmed that 51% believed in this concept
• If you are not married you do not have automatic financial rights
• Any rights are limited to the laws of property and trusts
• There is some protection for those with children and the courts can make orders to preserve the home in some cases until the children have finished full time education
• The best way to protect your interest is to have joint ownership and/or a cohabitation agreement

We are married and therefore I am entitled to half of everything

• Whilst the starting point in cases is equality the court look a number of factors when deciding how the assets should be divided
• The most decisive factor in most modest cases is the needs of the parties, especially the needs of the children
• In cases where the assets exceed the needs the court aims for fairness and therefore it may place more weight on other factors such as the length of the marriage, contributions made

If I transfer assets to a third party the Court will ignore them

• This is not the case and the Court can either make an order for these to be transferred back to the spouse or ‘add them back in’ to the pot so that any order reflects the fact that the transferor of that asset has already had that money
• The transfers are likely to become common knowledge as both parties will have to provide the other with full disclosure of their financial documentation which includes bank statements and solicitors will pick up on unusual transactions in this documentation
• The Court is likely to take a dim view of a party that has tried to conceal assets

If my spouse has racked up huge amounts of debt, I am liable for half of this

• The contractual position is that despite being married the debt is personal and therefore only attaches to the person who has the contract with the creditor (unless you are guarantor)
• The repayments are therefore the responsibility of the spouse whose name they are in and if there are missed payments it should only affect their credit
• However, there is always a concern if the debts have become unmanageable as a bankrupt spouse will cause problems for you and debts being secured on the other spouses share of the property could cause the home to be at risk
• The matrimonial courts can look beyond the contractual liability and sometimes will consider the debt to be joint when considering the finances if both parties have benefitted from the debt

Prenuptial agreements are not recognised in England and Wales

• Although a prenuptial is still not automatically binding in England and Wales the presence of a pre-nup can still be of value and even if not strictly enforced is likely to be of relevance as one of the overall circumstances of the case
• They are becoming increasingly recognised by the Court particularly when they are properly drafted with both parties having had full legal advice
• The cases where pre-nups are of most relevance is in second marriage, one party has wealth that they are bringing to the marriage or that are in a family trust or if you are attempting to protect an anticipated inheritance during the marriage

The children will always stay with the mother

• Whilst it may appear that this is the case, the Court is only guided by what is in the best interests of the child
• The use of a shared care arrangement is becoming more frequently used if it is practical and not disruptive for the child
• The general principle is that the Court will firstly look at who has been the primary carer for the children

Business assets are not taken into account by the Court

• The Court will consider the value of business assets in the same way they consider other assets i.e. savings, investments, property pensions and income

Please get in touch with our Family Law team If you would like to discuss the matters raised in this article or any other aspect of family law.