1. There is no such thing as a common law wife
It doesn’t matter how long you live with someone you do not become a common law spouse. There is no legislation to protect co-habitees . If you want to provide or receive protection on the breakdown of a cohabiting relationship you will need an agreement often called a living together or cohabitation agreement. Every week family lawyers up and down the country see someone who has lived with their partner for 20 or 30 years, bought all the food, paid for the holidays, raised the children and looked after the home and when the relationship ends they get nothing. You can enter into a living together agreement at any time during the relationship not just when you start out but the sooner the better.
2. Decree Absolute does not stop your ex-spouse making a financial claim against you!
The decree absolute is the final decree within divorce proceedings and confirms a couple are no longer married. What most of my client’s don’t realise is that without a Financial Remedy Order their ex-husband or wife could still make a financial claim against them in the future – even if they have sold the family home and distributed the proceeds. The solution is simple, when you reach an agreement make sure you get a financial order drafted reflecting the agreement and file it within the divorce proceedings. I don’t suggest anyone waits to do this, in my experience as time goes by, people forget or one spouse doesn’t sign the agreement or they lose contact with each other.
3. I don’t need to go to mediation- we have definitely split up!
This is a simple misunderstanding about the difference between reconciliation and mediation. Mediation is not there to try to encourage you to get back together it is an alternative dispute resolution process. It is a cost effective, swift and amicable way to resolve any issues. Lots of my clients use it to resolve financial issues or concerns about the children. Sharon Kay is an extremely experienced mediator with Kay & Pascoe LLP Family Law Specialists and gets great results for her clients.
4. Your financial case may not be a fifty/fifty split of the assets.
If a Judge is asked to decide the financial outcome then they will be trying to ensure that the distribution of the assets is fair. This has been taken to mean an equal split. Many of my clients believe or have been told by friends that the finances will be split equally. While this might be fair after a very long marriage, it is not going to be fair to sell the family home and divide the money equally when one spouse works part time and looks after three young children. If you don’t go to court you can use another process, mediation or collaborative law to help you reach an agreement that suits you best.
5. Adultery can be committed after you separate.
In order to divorce one or other spouse needs to show that the marriage has “irretrievably broken down” One of the ways of proving this to the court is to show (unless you are in a same sex marriage) that one person has committed adultery. This simply means that one spouse has had sex with a member of the opposite sex and the other spouse finds it intolerable to live with them again. This can happen after the parties have separated for other reasons. As a member of resolution I and many of my family law colleagues want the government to change the law and stop this blame game. Until this happens however adultery remains one of the two grounds for an immediate divorce.
6. The Family Courts favour Mums
When it comes to deciding what should happen with the children there is no one better placed to make decisions than the parents. You do not have to go to court and ideally if there is a dispute then you will resolve it using collaborative law, mediation or even arbitration. If however you do need to go to court is it biased in favour of mothers? My honest answer is -no I don’t think it is. The legislation has been changed to include a presumption that, provided it is safe to do so, it is better for a child to see the parent they don’t live with than not. Separation is a time of change for everyone and the court does like to keep things as stable for the children as possible. If a father makes an application to see his child then unless there is a child protection issue an order will be made for him to see that child. There are also more shared care orders than ever before. Are there issues the court still struggles with? Yes of course. Cases of parental alienation need specialist family lawyers like Kay & Pascoe LLP who can drive the case forward and ensure the issue is tackled at an early stage. The court has changed radically and now has to deal with all sorts of types of family and lots of different situations both here and abroad.
7. My husband has a pension and he’s going to give me £10,000 so I don’t make a claim against it,is that fair?
My very short answer is that I cannot know at our first appointment. Pensions are a very complex subject. In my experience women often fail to get their fair share of a pension. Why? There are many reasons ranging from not wanting to pay for the advice of a pensions expert, not wanting to upset their husband and the childcare arrangements to wanting a bit more money from the house. All of these are very valid reasons but I would make a couple of points a) unless you properly know what a pension is worth you cannot know either what you are giving up or what you might be entitled to. The cash equivalent transfer value can be an under valuation and it may need recalculating b) pensions can be a very valuable matrimonial asset and even if you do not own a house there is often still a pension to split. As family lawyers we look at the financial picture as a whole and not as individual assets so it is possible to “offset” which is what is being described above but the amount to be received needs to be carefully calculated.
8. My wife is living with someone else so I don’t need to pay maintenance anymore.
It is worth saying that not all separations lead to payments of spousal maintenance, however without representation maintenance orders can be rather basic and opt outs not included. If a spouse receives maintenance then it is quite possible for them to continue to receive spousal maintenance even when living with a new partner. If you have strong views about this make sure you are represented at any hearing.
9. Surely my husband’s bad behaviour entitles me to more money?
Solicitors call bad behaviour “conduct”. There are two types of conduct one is behaviour between spouses and within a family or group of friends, the other is litigation conduct ie whether or not the court rules are followed. If someone fails to follow a court order or deliberately hides assets it is open to the Judge to make an order for costs. If however your spouse is badly behaved towards you including being violent then often it is not taken into account, there are however exceptions. It is important that you tell us your circumstances as fully as possible so we can understand your needs and concerns fully. All our lawyers at Kay & Pascoe LLP deal with situations of abuse empathetically ensuring our clients feel as in control as possible.
10. I don’t know where my spouse is so I can’t get a divorce!
As specialists we can deal with any situation that arises, a spouse who refuses to do anything at all, assets abroad, a spouse that dies in the middle of divorce proceedings, this includes helping people obtain a divorce when they don’t know where their spouse is. It might take a little longer but it is certainly doable and delays can be kept to a minimum by providing the evidence the court needs at an early stage.
11. There’s no point to a pre-marital agreement they aren’t enforceable!
It is true a pre-marital (or pre-nuptial) agreement is not automatically enforceable however that does not mean they are not enforced. Provided the agreement is fair and the practical requirements are in place there is every chance the agreement will be upheld. If it is not upheld in it’s entirety then it can certainly limit any claims made. A pre-marital agreement is a living document and should be updated. It should also be drafted by an expert family lawyer.
12. The biggest myth of all- Family Lawyers are just after your money.
It is true that family lawyers are often also business people as well, but in my experience it is the only area of law which verges on a vocation. We genuinely care about our clients, the world in which they have to live and deal and the outcomes they obtain. We can’t do our jobs without working as a team whether that is just a small team of two or whether it includes a counsellor, accountant or financial adviser. Those of us who belong to Resolution: first for family law campaign for change in the law and sign up to accreditation schemes.