Myths in family law… Quickie divorce? Irreconcilable differences? Custody? Access? Common law marriage?

15 October, 2014
by: Cripps Pemberton Greenish

These are terms often used by the lay person when dealing with or referring to divorce, relationship breakdown and children disputes. Why? TV series, soaps and the media tend to use this language, however the lay person doesn’t realise that the terminology is out of date and often incorrect!

I have addressed below some of the myths in family law, and questions I often get asked by my clients, which I hope you will find helpful.

Can I obtain a quickie divorce?

The media often uses this term when reporting about celebrity divorces. The law is the same for everyone. The law states that you need to be married for at least one year before you can submit a divorce petition to the family court. A divorce takes between 4 and 6 months, sometimes longer particularly if there are unresolved financial issues.

Can I divorce on the basis of ‘irreconcilable differences’?

A couple divorcing often believe they can cite ‘irreconcilable differences’, ‘simply not getting on’ or ‘drifting apart’ as a reason. This is incorrect. In England and Wales, there is only a ‘no fault’ divorce if you have been separated for more than 2 years and the other party consents. If it has been less than 2 years, then you will need to rely on the other party’s ‘unreasonable behaviour’.

If I cite ‘adultery’ or ‘unreasonable behaviour’ for the breakdown of the marriage, will I receive a larger share of the assets?

No, the reason for the breakdown of the marriage is not relevant to the distribution of the assets. It is only in exceptional circumstances where the court finds that your spouse has shown gross misconduct, which could have an impact on the division of the assets. This is rare.

Getting divorced means that I am protected from any future financial claims from my ex-spouse?

Obtaining your decree absolute, which dissolves the marriage does not mean that you are protected from a financial application from your ex-spouse or prevent you from making a claim yourself. The financial claims arising by virtue of the marriage include property transfer, lump sum, spousal maintenance, pension share, and claims against each other’s estate; these claims are not automatically dismissed upon decree absolute. You will need to make a separate application to the court, even if you are seeking a financial clean break in life and death and you have reached an amicable agreement with your ex-spouse.

If I leave the matrimonial home, am I giving up my rights?

The short answer is no. You acquire rights whether you live there or not. There are disadvantages to leaving the marital home if you intend to sell the property, such as being in control of the sale and viewings as well as other reasons.

Does the breadwinner receive more of the assets?

Not necessarily. The family court considers contributions such as a bringing up the children, emotional support to the family including your spouse’s career, and looking after the home as equal and just as important. The first consideration of the court when considering the division of the assets of the marriage is the children’s needs.

Will I get custody or access to my kids?

The terms ‘custody’ and ‘access’ were abolished a long time ago. The family court now refers to ‘children arrangement orders’ which set out where the children live and the division of time spent with each parent’.

Am I in a common law marriage?

Often couples will believe that they are in a common law marriage if they have been together a long time. This is not the case. Living together and having children does not give you the same rights as a married couple. If you purchase a property with your partner then make sure you record the contributions made by each of you in a document known as a ‘declaration of trust’ and also future contributions whether it’s payment of the mortgage or an extension so that there is no ambiguity later on.

If you have any questions about the law, or are unsure of your rights, then speak to a solicitor in our family team.