Divorce Myths Debunked
Throughout my years in dealing with divorces and separations, I have come across a number of common misbeliefs held by clients which need to be debunked.
In this article, I have set out the top ten, in no particular order.
“I can petition on a “no-fault” basis”
Whilst the government has announced that new legislation will be brought for the long-awaited “no fault” petition, unfortunately, it is still in the process of being implemented. This means that until the “no fault” petition is in use, the current process (of relying on one of the five factors) will apply. These are adultery, behaviour, desertion, two years’ separation with consent and five years separation (without consent). Whilst an unhelpful start to the divorce process, this does not mean that you have to be at war with your ex-partner.
“I want a quick divorce”
There is no such thing as a “quick divorce”. Even if the matrimonial property and assets have not been dealt with, it can still take up to 6 months to finalise a divorce. This is because our Courts are very busy and there are compulsory waiting periods (such as 6 weeks and a day between Decree Nisi and Decree Absolute). All divorcing couples are of course advised to deal with the financial matters at the same time, so as to prevent any claims against them in the future.
“Adultery means I will get a better settlement”
Whilst adultery is a factor on which a divorce petition can be issued, the grieved party does not automatically get financial compensation for adulterous behaviour. Instead the Court will look to find a fair solution that meets the family’s needs.
“I can use my adultery to start a divorce”
Adultery can only be relied on if it has been committed by the other party. This means that only your spouse can petition on your adultery; not you. If you are in this situation, this does not mean that you cannot issue divorce proceedings. The fact of “behaviour” is likely to apply in this scenario. As it stands, adultery can only occur between members of the opposite sex. If your former partner has had an adulterous relationship with someone of the same sex, you must cite their behaviour for the divorce.
“Decree Nisi finalises my divorce”
It is a common belief that the divorce is finalised once Decree Nisi has been pronounced. However, your divorce is only finalised once Decree Absolute has been granted. Until such time as Decree Absolute is granted, you remain married (and cannot therefore re-marry!).
“The Judge will automatically Order a Decree Absolute”
If you wish to finalise your divorce, an application will need to be made to the Court. Decree Absolute will not automatically be made by the Court. If you do not finalise the divorce by applying for Decree Absolute, you will remain married.
“The matrimonial finances can be finalised without Court intervention”
This is one of the most harmful myths that I come across again and again. It is not uncommon for separated couples to believe that their finances are in full and final settlement of all claims if they divide their assets without the Court’s involvement. However, this is incorrect and often leads to uncertainty in the long term.
The only way to finalise the matrimonial property and finances is by way of a Court Order. This does not mean you need to enter into disputed proceedings. An agreement can be submitted to the Court for the Judge’s review and approval. If the Judge is satisfied that the agreement is fair, he/she will make a Court Order. However, until an Order is made, your spouse’s claims against your assets remain open and are often a ticking time bomb. There are cases where one party has come back and made a claim on the other 20 years on!
“There must be a 50/50 split”
Whilst the general starting position is equality, the Judge can depart from an equal split of the matrimonial assets if he/she determines it is fair in all the circumstances of the case to do so. Therefore, a fair Order (depending on the circumstances) may be an unequal division. This area of law is not straight forward and therefore requires advice from a family law specialist.
“I am protected by common law marriage”
It is understandable that after many years of living together under the same roof as a family (no different to a married couple) that you would consider yourself protected by the law under “common law marriage”. Unfortunately, that is not the case. “Common law marriage” is a myth and unless you are legally married, in the eyes of the law, you are considered as cohabitees. The law applicable to two people living together (without marriage) is very different to two people living together as a married couple. The law related to cohabitees is less favourable and you do not automatically have an entitlement to your partner’s assets. This is a complex area that requires advice from a family law specialist.
“I had a religious ceremony so I have legal rights”
All religious marriage ceremonies do not result in a legal marriage. In the eyes of the law, if the correct procedure is not followed, the marriage will not be valid and it means you are living with your partner as a cohabitee with limited financial protection (if any). Religious marriages from faiths such as Islam, Sikhism and Hinduism are only valid if all the civil requirements have been met. By way of example, if a Muslim “nikkah” (the religious marriage ceremony) does not take place in line with the requirements of a legal marriage, the couple will also need to undertake a civil ceremony. In the absence of a legal ceremony, their marriage remains legally invalid.
If you would like to discuss any of the above issues in more detail then please feel free to contact us on 01245 504904 to book an appointment.