When clients
first visit me to discuss getting a divorce I’m often surprised at how many
myths surround divorce. There are quite
a few untruths that seem to have become considered ‘fact’, thanks largely to
the media
So, here are
my top ten divorce myths and the facts behind the fiction…
1. You can become a ‘common law spouse’ by living
together for a certain amount of time.
Untrue –
there is no such thing as a common law spouse. You only become a spouse by
going through a legally recognised ceremony of marriage
2. The divorce finalises any financial claims
and once decree absolute is pronounced my ex-spouse can’t make any claims
against me.
Untrue – the
divorce dissolves the marriage, however to achieve a binding financial
settlement a financial order needs to be made by the court (which can be by
consent). Without that order your ex-spouse may be able to make a financial
claim against you potentially months or even years after decree absolute.
3. If I am already separated from my spouse
when I start a new relationship that isn’t adultery.
Untrue – if
you have a sexual relationship with another person whilst still married the law
would class that as adultery even though you are separated (even if it is not
therefore the reason for the marriage breakdown).
4. My spouse committed adultery so the court
will award me a greater share of assets as a consequence to punish them.
Untrue – the
fact one party has committed adultery will not entitle the other to a bigger
award as a result.
5. If I wait two years to get divorced, the
procedure is quicker and easier than divorcing on the grounds of adultery or
unreasonable behaviour
Untrue – the
procedure and timescale is the same regardless of the reason.
6. I can get divorced on the grounds of
irreconcilable difficulties.
Untrue –
there is only one ‘ground’ for divorce which is that the marriage has
irretrievably broken down and which has to be evidenced by one of 5 facts –
adultery, unreasonable behaviour, separation of 2 years with consent,
separation of 5 years and desertion.
7. If I had assets before the marriage or
acquired after we separated, I do not need to disclose them and they will never
be relevant to the settlement.
Untrue –
there is a duty on both parties to disclose fully details of all their assets
irrespective of when they were acquired. If they were acquired before the
marriage or after separation the court may treat them differently to other
assets acquired during the marriage, (and for instance ultimately leave them
out of the ‘matrimonial pot’ for division) but they still have to be disclosed
and ultimately if agreement can’t be reached it will be down to the discretion
of the court how to deal with these assets, depending on the particular
circumstances of your case.
8. Spousal maintenance is always time limited
Untrue – in
some circumstances the court can order it be paid during joint lives i.e. until
one party dies– it all depends on the circumstances of the case
9. I can’t commence divorce proceedings until
I have been to mediation
Untrue – it
is not necessary to attend mediation to get divorced.
10. It will be cheaper if I don’t instruct a
lawyer for my divorce and financial settlement.
Not
necessarily - whilst this may seem cheaper in the short term, in the long term
it could prove to be much more expensive if you do not take legal advice.
Sometimes the long term effects of a financial settlement can be unexpected and
you should take advice as to what is an appropriate settlement for you. Getting
advice as to your rights to secure your future is money well spent!
Sally Leaman
