Associate solicitor Catherine Currie, in our Family Law team, debunks a number of common myths surrounding Family Law.
Clients often come to us for advice with various misconceptions and beliefs surrounding family law issues. It is hardly surprising, given the portrayal of the profession at times in the media (who saw “The Split” on the BBC?) and reliable (or not) internet sources using phrases that are archaic, confusing or just plain wrong! This blog aims to try and expose some of the myths we commonly hear about as family lawyers and set things straight.
My spouse/civil partner committed adultery and so I should be entitled to more money in the divorce/dissolution
The fact that adultery took place, in and of itself, will not have an impact on the divorce and financial settlement. The Court have a range of factors they must consider in all cases to determine what is an appropriate, fair financial settlement, and unless ‘conduct’ is of a very serious and grave nature, it is unlikely to be relevant.
It used to be possible to commence divorce proceedings on the basis of adultery, but we now have a ‘no fault’ divorce system which does not require an explanation for the marriage breakdown and does not attribute any blame for the relationship coming to an end. The intention of taking ‘blame’ out the picture is to try to remove potential animosity right at the start of proceedings and to avoid becoming engaged in unnecessary disputes about child arrangements or finances . The dynamics between spouses after adultery may be such that communications and trust have completely broken down, and feelings of resentment and guilt are likely to be prevalent which can add another dimension to the divorce and financial proceedings. However, with the right support and advice, this does not prevent a fair divorce financial settlement being reached.
A mother always gets custody of the children after parents separate
Firstly, the word ‘custody’ is not one we would use anymore. The language of the law has changed to referring to ‘child arrangements’, instead of ‘custody’ and ‘residence’, although the phrases are still used by certain people and practices.
Secondly, and most importantly, arrangements for children after parents separate come down to what is in the best interests of the children. There is no presumption that either parent spends more time with the children than the other. Indeed, it is generally assumed that a child will spend a good amount of time with each parent after separation unless there is a significant welfare issue which would prevent this. Families are encouraged to try and agree arrangements between themselves, and the Court will only become involved if there is a genuine dispute or there is a concern about the children’s welfare.
I am a common law spouse
No you are not, because this relationship status does not exist! Unless you are legally married/in a civil partnership, you will be considered ‘cohabitants’ (if you live with your other half) under the law in this country. Unhelpfully, some industries (e.g. insurance) still insist on using references to ‘common law spouses’ to describe relationships which fuels the idea that the status exists.
Couples living together do not have the same automatic rights against each other that married couples/civil partners have and it is important to consider taking legal advice on how to protect your position financially both whilst in the relationship and upon any breakdown of the relationship.
I put more money into the deposit on the family home so I should get it back if we split up
Not necessarily. This depends on a whole host of factors, worthy of their own blog or three! In short, it will depend on whether you are cohabiting/married/in a civil partnership, potentially how long you’ve been in a relationship, what sort of sums are being talked about, whether there is anything in writing recording the position of ownership shares and whether there are children involved. It is sensible to ensure you are advised upon your property rights before purchasing a property with somebody else.
Pre-nups are only for the rich
Wrong. Pre-nuptial agreements (or post-nuptial agreements if entered into after a marriage/civil partnership) allow couples to agree how they want their finances to be treated in the event of a breakup. They carry weight in the family court if they meet certain criteria. Many couples, not just those with substantive sums of money, want to protect their positions – perhaps they already own property in their sole name, have been married/in a civil partnership previously, have a significant age gap, or they simply want to ensure some financial stability and certainty in the future.
We are all a little guilty of Googling our symptoms when we are unwell and giving ourselves a potential diagnosis with no real expertise to assist. In that sense, it is perhaps natural that one hears/reads about a family issue and forms an incorrect understanding of their legal position. Speaking to a qualified family lawyer about any family issues you have is sensible and ultimately cost-saving in the long-run to prevent nasty surprises later down the line.
Our leading Family Law team can advise on all aspects of Family Law. Please get in touch to find out more or to discuss your situation.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
