There are a number of misconceptions that a number of individuals hold regarding the divorce process. Many people are shocked to learn that the starting point of the Court is for an equal division of assets between the parties, regardless of the conduct of the parties - during the marriage or otherwise.
During initial meetings with clients it is clear that they hold pre-conceived ideas about the legal position during a divorce, it could be suggested that this is due to how family proceedings are portrayed in television or within the media.
Infidelity or conduct within the marriage/proceedings
One of the most common position that an individual holds is that if one party has had an affair or caused the breakdown of the marriage, the other spouse should be compensated and receive a larger share of the assets contained within the matrimonial pot.
The divorce proceedings and financial proceedings are dealt with separately and the conduct of the parties is mostly irrelevant except in extreme circumstances whereby the offending party has committed severe financial conduct. The Court’s position focuses on the needs of each party, rather than assigning blame to the breakdown of the marriage.
The Court’s position is demonstrated by the implication of the no fault divorce system that replaced the old system whereby adultery would need to be listed as the reason for divorce. The new system implicated on 6th April 2022 the party issuing the application only needs to state that the marriage has broken down irretrievably.
Common law marriages
Another common myth arising from divorce is that couples cohabiting together as an unmarried couple for a long period of time results in a ‘common law marriage’ providing certain legal and financial rights. This is a common misconception, as cohabiting couples do not have the same rights as married couples.
Statistics show that the number of unmarried, cohabiting couples has doubled from 1.5 million in 1996 to 3.6 million in 2021. It is clear that this is the fastest growing family type throughout the UK.
Unfortunately, there are very limited protections and legal rights for unmarried cohabitants. Limited financial claims can be made if there are children of the relationship, however the only financial claim related to the relationship fall under property and trust law. Unmarried cohabiting couples should consider obtaining a Cohabitation Agreement dealing with the financial resolution if the relationship down breaks down.
Pre-Nuptial Agreements
It is a common misconception that pre-nuptial agreements are pointless and not worth obtaining. However pre-nups and post-nups can be enforceable by law – if certain criteria is met.
Following 2010, couples are likely to be held to pre and post-nup agreements if it is contractually valid, meets certain tests regarding its form and adheres to safeguards. In the case (Radmacher v Granatino) the Supreme Court made it clear that the nuptial agreements will be upheld if they are freely entered into by both parties and that there are no current circumstances that would make the agreement unfair to the other party.
If you or your partner require assistance and advice with regards to your rights and protections as a cohabitee or the divorce process our experienced family team are here to assist. If you wish to make an enquiry please call us on 01484 821500 or email using our enquiry contact form.