Eight Myths About Your Divorce Rights22nd Dec 2016
Some divorces can be made more difficult if the people involved are labouring under misapprehensions.
They may think they have rights where none exist because of all the myths surrounding divorce and separation.
Here are some of the common myths we hear most…
1. “We’re not married but we’ve lived together for years – I have common law rights.”
No, you do not. This is the biggest myth of all. Marriage comes with certain rights. Cohabitation does not give you the same rights as if you were married.
There are certain claims unmarried couples can bring in respect of property – whether owned jointly or in one person’s name.
But this area of the law is not straightforward and it is important to seek expert advice.
2. “The mother always gets the children.”
It is not automatic that the children will live primarily with the mother following separation.
Also, for same sex couples, it is not automatic that the biological parent is in a stronger position than the other parent.
What is in the children’s best interests is paramount in the eyes of the court.
Who the children should live with and how much time they should spend with the other parent is dependent on many factors such as:
- who is the primary carer
- parents’ work commitments
- location of schools
- the wishes of the children
- any welfare concerns.
Find out more here about agreeing children arrangements.
3. “Getting divorced protects me from all future claims from my former partner.”
Only if both parties have agreed a full and final settlement and this has been approved by the court.
Without this you could still be vulnerable to future claims from your former partner – even for many years ahead.
Find out more here about resolving your finances when you’re getting divorced.
4. “I’m the victim so I’m legally entitled to more money in the financial split.”
You would like to think that natural justice and the law would always go hand-in-hand. Sadly this is not always the case.
Your former partner could have a series of affairs, break their marriage vows and betray your trust – but this does not entitle you to a bigger share of the assets.
How the assets are divided will depend on factors including:
- the welfare of any children aged under 18
- the income, earning capacity and resources of both parties
- their needs and obligations (now and in the future)
- the standard of living they enjoyed during the marriage
- the length of the marriage
- the age of the people getting divorced (how many working years they have left before they retire)
- any physical or mental disabilities they may have
- any contributions made financially or otherwise (such as one parent sacrificing their career to look after the children).
Bad behavior by one or both parties during the marriage will be taken into account only in exceptional circumstances.
5. “My ex has a new partner so I don’t have to pay maintenance anymore.”
Various factors will come into play here.
Your maintenance will stop if your former partner remarries – but not necessarily if they simply cohabit. They may steer clear of the altar for as long as they can in the hope you will have to keep paying.
If you believe that your former partner’s circumstances have changed significantly, you may be able apply to the court to review your order.
The judge may reduce the maintenance you have to pay but you may still have to make some form of contribution.
Do not assume that your financial obligations end simply because your former partner has found someone new.
6. “My divorce will automatically go to court.”
Generally the actual divorce process itself does not involve any court hearings – it is disputes relating to financial matters and children that can lead to court hearings.
But these are best avoided where possible. There are forms of alternative dispute resolution available. These include reaching an agreement through collaborative law and mediation.
7. “All former partners get maintenance.”
Child maintenance is a legal liability that cannot be avoided – but the payment of maintenance to a former spouse is not automatic.
The reasonable needs of the parties will be taken into account primarily, along with the standard of living enjoyed during the relationship.
And the ability of the other party to pay will also be relevant.
Someone can be expected to pay spousal maintenance only if they can actually afford to do so.
8. “I’m entitled to Legal Aid.”
Legal Aid has been withdrawn in most family cases but some exceptions still apply (such as for victims of domestic violence).
Legal Aid is also still available for mediation.
For more information, contact Associate Solicitor and Mediator Richard Perrins, Head of the Family Law Department at Coles Miller, 01202 355698.
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This document is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact Managing Partner Neil Andrews at Coles Miller Solicitors LLP.
