With 40% of marriages ending in divorce, many people believe it to be a simple and uncomplicated process. However, divorce law is not always easy to understand, and has caused many popular myths. Here we delve into common misconceptions and provide you with the correct information about getting a divorce.
1. You can get a “quickie” divorce
Whenever a celebrity couple are getting divorced the phrase “quickie divorce” is thrown around by the press. However, there is no such thing (even for the rich and famous). Generally speaking, divorce proceedings usually take around 6 months once the petition has been issued by the court. The divorce is not final until decree absolute is obtained and the couple remains married until then. It is not generally possible to deal with a divorce quicker than this, though there are some cases where exceptional circumstances dictate.
2. The “Common law spouse”
The rule of common law wives was abolished in 1753 by King George II. Meaning regardless of how long you may have lived with your partner you will not gain any status as their spouse. The law relating to cohabiting couples of complex and very different to that relating to divorce. There are ways that cohabiting couples can protect their interests i.e. by “living together”/cohabitation agreements.
3. You have to obtain your spouse’s agreement to proceed with a divorce
Whilst this is not technically true, there are some matters that need to be considered here. If an application is made for a divorce on the basis of adultery then the person applying (the petitioner) either needs to prove that adultery, or the answering spouse (the respondent) needs to confirm in writing on a court form that they did commit adultery. Similarly, if you apply for a divorce based on two years separation then your spouse does need to give their consent to this. However, an application on the basis of unreasonable behaviour does not need to be agreed and there are ways to progress the divorce if your spouse refuses to respond or cooperate.
4. You want to divorce based on “irreconcilable differences”
At present, in the UK “no fault” divorces do not exist although this is set to change in 2021 when the Divorce, Dissolution and Separation Act 2020 comes into force. To get a divorce you have to show that your marriage has irretrievably broken down as a result of one of five facts: adultery, unreasonable behaviour, desertion (rarely used), 2 years’ separation (with consent of the other spouse), or five years’ separation. From Autumn 2021, “no fault” divorces will be possible, removing the need to blame one party for the breakdown of the marriage.
5. The reasons for divorce affect the financial settlement
Except in extreme cases, the reasons for a marriage ending are usually irrelevant when deciding what the division of the matrimonial assets should be. The court is not usually concerned with “punishment” but rather coming to a fair and just resolution which meets the family’s needs.
6. If you move out of the family home, you will lose your rights
You will not be penalised if you choose to move out of the family home. By moving out you do not give up any legal rights. If you live in a property which is owned in the sole name of your spouse and you are concerned about protecting any rights to that property, there are ways in which those rights can be protected.
7. Money/assets in your sole name can be retained
Even if you have been careful with money during the marriage and built up savings in your sole name and kept all money separate, generally speaking all assets become joint assets by virtue of the marriage. Although there are exceptions to this. Regardless of whose name they are in, claims can be made by your spouse in respect of those assets within divorce and financial proceedings.
8. Children always live with their mother after divorce
This is not the automatic position. In considering divorce proceedings the courts adopt a “no order principle” regarding the children of the family and it is for the parents to resolve matters relating to the children. Parents are encouraged to resolve these issues outside of court, perhaps in mediation or arbitration. Courts must take account of the principle that both parents should continue to be involved in their children’s lives where that is safe and consistent with the child’s welfare. Court proceedings however should be the last resort.
9. Lawyers want you to go to court
Family lawyers, like those at Tozers, who are members of Resolution sign up to a “Code of Conduct” that ensures a non-confrontational approach is taken where possible. Many cases can be resolved through mediation, negotiation or a collaborative approach. Some cases may require Court involvement, but this is usually to set a timetable for the parties rather than it being a hostile step.
10. Getting divorced will cost the earth
This is not the case. Tozers offer a fixed fee divorce service which aims to keep the costs of drafting the petition and progressing through to decree absolute at a minimum. In terms of the costs you can expect in relation to matrimonial finances, these will differ from case to case but there are ways that you can keep the costs down such as discussions direct with your spouse where appropriate. For further information, please contact us.