Common divorce myths debunked
Our family solicitors debunk some of the most common divorce myths, to support your understanding throughout the process.
19 December 2022
When it comes to thinking about getting a divorce, there are a lot of common myths you may hear about how to go about, and what can happen, throughout the process. Some may be anecdotes from friends or family members, but it’s best to separate myths from the truth, to support you through what can be a difficult time.
What hurts more than a breakup?
Animosity when it comes to organising matrimonial finances can be extremely difficult. If you get divorced without resolving your finances upon divorce legally, your ex-spouse could still make a financial claim against you in the future. You therefore need to ensure that any financial settlement reached upon divorce is drafted into a financial consent order and lodged at court to be made legally binding, once the conditional order in the divorce proceedings has been pronounced, to formally dismissing any future financial claims.
The ‘common law spouse’
You may have heard the phrase ‘common law wife’ used a lot, on the television or from friends. It is commonly thought that if you and your partner are living together for an extended period of time, you automatically have the same rights as if you were married.
However, this is not correct, there is no such thing as “common law spouse” and the law in relation to cohabitation is entirely different to divorce.
‘It’s a good thing if your ex doesn’t have a solicitor’
If your ex-partner isn’t legally represented, it can cause issues during the course of a case, for example, without having the benefit of independent legal advice, they are unlikely to fully understand the process, and this may ultimately cause time delays and increase your legal costs. It is usually beneficial for your ex-partner to be legally represented, to ensure a case is dealt with constructively.
‘I want my husband/wife out of the house, so I am going to change the locks’
If you jointly own your property, you can’t simply change the locks as you both have a legal right to the property, therefore unless you can obtain a court order to exclude your spouse (which can be difficult to obtain), neither spouse can be excluded.
‘A prenuptial agreement is guaranteed protection’ or conversely, ‘Prenuptial agreements are not worth the paper they are written on.’
Although they’re not strictly legally binding in England and Wales, are a compelling factor for a court to consider, as long as they are entered into properly, following the exchange of financial disclosure and with each party having the option of seeking independent legal advice. They can ensure that, should your marriage end, there will be as little conflict as possible over the division of financial assets. It’s always best to consult an experienced family law solicitor when considering a nuptial agreement, to ensure that you give the document the best chance of being taken into account by the court if you do divorce in the future.
Do women get more in a divorce?
The law doesn’t discriminate when it comes to divorce. How much you are awarded on divorce comes down to individual circumstances, with the court’s first consideration being any dependent children.
‘A spouse has no rights to the former matrimonial home if they’re not the legal owner’
This is not correct. If you own the former matrimonial home in your sole name, your spouse does have a right to occupy the property. The non-owning spouse is likely to register their home rights with the Land Registry. Whilst home rights don’t give a non-owning spouse a beneficial interest in the former matrimonial home, the property is likely to be considered as a matrimonial asset for the purposes of financial division, regardless of if it is only owned in one spouse’s sole name.
‘My pension won’t be taken into account’
The court does have the power to make a pension sharing order upon divorce A range of factors will be taken into account, to determine if your spouse is entitled to a share of your pension and if so, how much of that share your partner is entitled to.
‘You’ll be entitled to half your spouse’s assets’
Although equal division is usually the starting point in the division of the matrimonial pot, a fair financial settlement will be based on a whole range of factors, including whether there are dependent children, both parties’ respective needs, the length of the marriage, ages of the parties, future earning capacities, and contributions. The court’s approach is usually that needs take precedence, and each case is determined on its own facts.
If you have more money, can you get divorced quicker?
Simply put, no. The divorce procedure is the same for everyone. Regardless of money, the divorce proceedings will follow the court’s timetable, and there is no way to pay to make the proceedings go quicker. Since the introduction of no-fault divorce in April 2022, it now takes a minimum of 6 months to get divorced; this includes a 20-week period of reflection between the issue of the petition and the first stage of the divorce, the conditional order and a 6-week period from the conditional order to the final order, when the marriage is legally ended.