There are some common myths about divorce that remain steadfast despite being unfounded and incorrect in the eyes of the the law. Stowe managing Partner Amanda Phillips-Wylds debunks the top 9 divorce myths.
Top 9 divorce myths
When you decided to get divorced you might have heard or read lots of conflicting stories about what to expect about the process. It can feel very confusing. Based on my years of practice, I have put together a list of the 9 most common misconceptions I hear from my clients to help you reset your expectations and move forward with clarity.
Myth 1 – Divorce always ends in court battles which leave spouses angry and bitter.
It is very rare for spouses to have to attend court. Since the arrival of no-fault divorce spouses can no longer object to divorce proceedings being filed. Court intervention would only be necessary if couples are unable to settle disputes over financial claims, but this is still a last resort and before they get to this stage, they will have had to have tried other options such as mediation.
Myth 2 – Divorce is always expensive.
Costs can escalate quickly when it comes to resolving financial claims, especially if spouses cannot agree and take the case to court. However, they can undertake the divorce proceedings themselves to avoid incurring legal fees, alternatively many solicitors offer a fixed fee to act in divorce proceedings which will not be disputed.
Myth 3 – Celebrities are special and so get ‘quickie’ divorces.
The court processes divorce petitions in the order in which they are received. No divorces are singled out to be rushed through.
Myth 4 – Assets are always shared equally on divorce.
The starting point for division of assets is a 50/50 split, this is known as the ‘yardstick of equality’. However, it will not be appropriate in all cases to share the assets equally. There is no set formula which the court uses to make a decision, rather it has a list of factors it must consider and give weight to before arriving at a fair split. These include:
- the welfare of any minor child
- the income, earning capacity, and property each of the spouses has or is likely to have in the foreseeable future
- the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future
- the standard of living enjoyed by the family
- the age of each spouse and the duration of the marriage
- any physical or mental disability of either spouse
- the contributions which each of the spouses has made or is likely to make in the foreseeable future to the welfare of the family, including contributions in looking after the home or family
- the conduct of each spouse, if that conduct is so bad that it would be unfair to disregard it
- and finally the value of any benefit which a spouse will lose by reason of the divorce e.g. a pension.
Myth 5 – Once you receive a Final Order that’s it.
Unless there is an approved court order dealing with the financial claims spouses have as a result of their marriage, then either spouse could make a future claim against the other’s assets, even several years after they have been divorced. Having a Final Order does not end financial claims. There must be a court order that provides for a clean break.
Myth 6 – There is an automatic right for the mother to have the children living with her upon separation.
Upon separation it is for the parents to decide who the children will live with and how much time they will spend with the other parent. A court will not become involved unless the parents cannot agree, and they ask the court to make the decision for them. If a court does become involved its decision is based upon what it thinks is in the best interests of the child, and it has a checklist of factors to measure this against.
As society changes, parenting roles are evolving from traditional norms and in more and more cases, fathers are taking a greater role in the care of their children, it is no longer unheard of for children to live with their father upon separation. There is no ‘standard’ arrangement for parents to follow when agreeing how much time children will spend with their father or mother once a relationship has broken down.
The arrangements may differ during holidays and term time, and they normally evolve over time and as the children grow older. 50/50 shared care is becoming a more common arrangement between separated parents.
Myth 7 – The parent with ‘custody’ of a child has greater rights than the other.
Who a child lives with has no bearing on each parent’s role in making important decisions in the child’s life, or their role in caring for the child provided they each have parental responsibility.
If both parents have parental responsibility, they both have an equal say in all the important decisions in the child’s life, for example in relation to education, medical treatment, religion, and property. The child’s mother automatically has parental responsibility for the child. The father will have parental responsibility if he was married to the mother at the time of the birth, if he is named on the child’s birth certificate, or if he has a Parental Responsibility Agreement with the mother or an order from the court.
Myth 8 – If they are not receiving child maintenance, the parent with whom the child is living can stop the other parent seeing the child.
There is no legal basis to stop the parent who must pay child maintenance from seeing their child if they stop paying. The remedy is to contact the Child Maintenance Service for a calculation.
Myth 9 – Unmarried women have rights over property as Common Law Wives.
There is no such thing as common law marriage in the UK, and so there is no automatic right to share assets between unmarried couples upon relationship breakdown. If a couple is going to cohabit or buy a property together it is important for them to obtain legal advice on what shares they will each have in that property and how this will be recorded.
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Source: Children - stowefamilylaw.co.uk
