Many people have certain perceptions about divorce, the majority of which do not have any grounding within the law or the divorce process.
Here are 5 of the myths associated with divorce that I most commonly encounter…
You can get a quickie divorce if you both agree
The press may refer to ‘quickie divorces’ in the case of celebrity couples but the reality is, there is no such thing! Whilst having a divorce ‘uncontested’ might allow for a smoother ride, the divorce courts routinely take between 4 and 7 months to process divorces. Additionally, although many divorces may start out with the parties being in agreement, when it comes to the division of assets, relations can quickly become strained. In some cases, for example if one of the parties decides not to cooperate or there are particularly complicated financial issues involved, it can take years for a divorce to be finalised.
Divorce and financial settlement happen at the same time
The divorce process has several formal stages that must be passed through. These stages include obtaining a decree nisi and a decree absolute from the court – the latter of which confirms that your marriage has officially ended, giving you the legal right to remarry again should you wish to do so.
Notwithstanding this, without having a financial order approved by the court, couples remain financially tied to one another. In this sense, it is possible for ex-spouses to open to further financial claims against each other down the line. It is therefore essential that a financial settlement is agreed and approved by the court in order to fully finalise matters.
You’re automatically entitled to half each
Although the starting point for the division of financial assets is often a 50/50 split, in the vast majority of cases, it isn’t as straight forward as this. There are many different factors that contribute to the eventual distribution of finances during divorce or civil partnership dissolution, including what each party needs – or has become accustomed – to live on and who will undertake the main role in the provision of child care. There is ultimately no formula, and should it lie with the courts to determine the financial settlement, each couple’s financial circumstances are carefully examined on a case by case basis.
The alternative options is for couples – with the assistance of their lawyers – to come to an agreement between themselves. This would then need to be approved by the court to become legally binding.
Pre-nups are legally binding
Despite the perception most people have, neither pre-nups nor post-nups are automatically legally binding in English courts. This being said, provided an agreement has been produced fairly and without coercion, there is a good chance it would hold weight with the courts should it be required at a later date.
Cohabitees and married couples/civil partners have the same rights
Under current law in England and Wales, unmarried couples do not have any automatic legal claim upon their partner’s assets upon separation. Regardless of the length of time a couple has been together and even if they own a house or have children together, the absence of any right to claim on each other’s financial assets remains the same. With cohabitees representing the fastest growing family type in the UK, couples whose assets are financially entwined might be well advised to have a separate ‘cohabitation agreement’ drafted in order to protect their financial position.
Anthony Jones is a Director, Head of Family and is a Resolution Accredited Specialist.
For more information on any aspect of divorce or civil partnership dissolution, please contact him on 01457 761671 or email anthony@odonnellsolicitors.co.uk
