Unfortunately, most people have experienced the breakdown of a relationship or family in one way or another. Many of our clients come to us knowing some information about the process or law that applies to their situation but they have often heard something that isn’t quite true.
Here are some of the most common myths we come across and why they are in fact, just myths:
1. Common Law Wife/Husband
Legally, this term has not meant anything since 1753 but despite this, insurance companies unhelpfully include it on their application forms. You do not acquire rights to property, pensions or otherwise by just living with or being in a relationship with someone. This means that any disputes about property are dealt with under property law, which in the first instance looks at the legal title. If you have children with your cohabitee or former partner, you may be able to make an application about a property under the Children Act, but this is only possible in very specific circumstances. There may also be obligations about child maintenance which will depend on the living arrangements for the children and the ‘non-resident’ parent’s income position.
2. Waiting two years to divorce is cheaper and quicker
The process to obtain a divorce is the same whether you rely on adultery, unreasonable behaviour or a period of separation. Whilst relying on two years’ separation, which both parties must consent to, is less contentious, you will have to revisit your financial arrangements after you separate rather than dealing with all the paperwork in one go. There is also no such thing as a “quickie” divorce despite what you often read about celebrities in the press. It is only in exceptional circumstances that the process between Decree Nisi and Decree Absolute can be shortened but usually, undefended divorces take four to six months. Defended divorces take longer and are, fortunately, very rare.
3. Mediation doesn’t work
Finding out about mediation is now compulsory before you can make a Court application about your children or about the financial arrangements following a divorce, but mediation itself is still voluntary. Many couples find that it provides them with a safe and supportive environment to discuss the difficult issues that arise during separation and divorce. Mediators work with couples in an impartial way to help them agree arrangements which will suit their family. It’s because of this that mediation has a high success rate and agreements reached within the process are more likely to work for longer than Court-imposed solutions.
4. Mum always gets the children
There has been a definite shift in how arrangements for children following their parents’ separation are considered, with shared care arrangements (the terms ‘custody’, ‘access’, ‘residence’ and ‘contact’ are no longer used) becoming increasingly common. There is no requirement in England & Wales for the Court to become involved in future arrangements for children following a divorce/separation but if the Court’s assistance is required, they can make a Child Arrangements Order about who the children will live with and/or when they should spend time with either parent. It is hoped however, that disputes can be resolved in mediation or with the assistance of a Solicitor or family therapist.
So there you have it: four myths busted. Hopefully in reading this, you will have a better understanding of what can be expected from the divorce or separation process. The BPE Family team is here to help you with the sensitive nature of legal issues surrounding any family problem.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.