Dispelling Divorce MythsDecember 19, 2018
Over the years, clients have told us some weird and wonderful myths about divorce and separation. To avoid confusion Rebecca Jones, Solicitor in our Family Team, dispels the most common myths and clarifies what the law says.
Relying on adultery or fault of the other party means you will receive a bigger financial settlement
Divorce proceedings are separate to financial proceedings and bad behaviour generally has little impact on either. During financial proceedings there is provision for conduct to be taken into account in terms of the financial division but this is in very rare circumstances as it needs to be of a sufficiently serious nature. Usually a judge has no interest in why the marriage has broken down.
Adultery can be relied on by anyone
Currently if you are in a same-sex marriage you will not be able to rely on adultery due to present legislation. Unfortunately the current divorce laws are considered to be archaic and do not take into account the changing nature of family structures. It is widely acknowledged that reform is needed within this area.
I want a ‘quickie divorce’
Despite what is portrayed in the media, there is no such thing as a ‘quickie divorce’. As a recent example, when Louise and Jamie RedKnapp divorced there was a headline claiming that their marriage ended ‘in 25 seconds flat over his unreasonable behaviour’ which is impossible. Irrespective of whether you are a well-known celebrity, everyone has to go through the same divorce process which usually takes on average around 4-6 months to complete.
I want a ‘meal ticket for life’
Maintenance has been a hot topic in the divorce world recently. Whilst it remains possible for a wife to have a maintenance order for life, this is incredibly rare. In fact, as seen in a recent Supreme Court decision, judges are keen for parties to move towards financial independence as soon as possible and many judges are of the view that parties should be able to stand on their own two feet.
Full disclosure is not necessary
Parties are expected to make full, frank, relevant and continuing financial disclosure to each other setting out full details of their circumstances. Early voluntary disclosure is encouraged in order to assist negotiations and increases the chances of reaching an early settlement and avoiding Court proceedings. Usually parties are required to disclose 12 months’ worth of bank statements, 3 month's worth of payslips, an up-to-date CETV (Cash Equivalent Transfer Value) for all pension valuations, debts and liabilities.
The consequences of not disclosing assets can be serious, such as a cost order being made against you, adverse inferences being drawn due to the lack of requested information or you could even end up in prison for contempt of court.
I owned these assets pre-marriage therefore they are mine
It may not be possible to ring-fence pre-marital assets. If there are insufficient matrimonial assets to meet the needs of the separating couple and their children then the Court will take into account all available assets the couple have.
Isn’t it just a 50/50 split?
50/50 is the starting point however there may be justification to move away from equality but this is assessed at a judge’s discretion which varies on a case by case basis. There are a number of factors taken into account to include the ages of the parties, whether there are any children, the standard of living enjoyed by the family before the breakdown of the marriage, contributions made by each party, the current and potential income and earning capacity of each party and the duration of the marriage. Needs are of paramount importance in family cases.
I do not need a financial order if I am divorced
This is probably one of the most common misconceptions. It is essential to have a legally binding consent order drawn up to reflect what has been agreed by way of a financial settlement. Without having an order in place, all potential claims between the parties remain live which is risky for both parties further down the line as circumstances can change significantly.