Don’t get caught out by these five divorce myths
1. ‘The quickie divorce’
There is no such thing as a quick divorce. All divorces are filed on the basis that the marriage has irretrievably broken down, but there are then 5 grounds on which a Petitioner can rely. In order to divorce immediately rather than wait two or five years (or prove desertion), a petitioner would rely on a respondent’s unreasonable behaviour or adultery. None of the grounds of divorce automatically affect how the finances or arrangements for the children are dealt with. The procedure for each ground relied on is exactly the same. It is advisable to resolve the finances of your marriage prior to applying for decree absolute or at the very least seeking legal advice on your financial situation before applying for decree absolute. The government is considering a “no fault divorce” – but this is not yet the law, and may not be any quicker than the current system.
2. ‘I can’t afford to get divorced’
It is, of course, more expensive to fund two homes rather than one. However, that does not mean necessarily that the parties could not afford to divorce. The main asset from the marriage is usually the former matrimonial home and possibly pensions. Different assets can be ‘offset’ against each other. So, for example, a wife may be more inclined to retain all of the equity in the house whilst the husband would prefer to keep all of his pension. It is not the case that each specific asset has to be divided.
3. ‘There is a financial clean break once decree absolute is pronounced’
There is no automatic financial clean break between a divorcing couple.
If you wish to have certainty regarding your financial situation then a court order in relation to your finances needs to be obtained. This can be done by consent or, if necessary, by making an application to court. If you do not have a court order then ever after divorce either party could make applications to the court to make claims against income, capital and pensions at any point in the future. An example is the recent high profile case of a multi-millionaire whose ex-wife made an application for a lump sum and spousal maintenance 30 years after they separated!
4. ‘The mother automatically has care of any children’
There is no legal presumption that one parent should automatically care for the children of the marriage on separation. On marriage both parents hold parental responsibility for their biological children. This means that they share this legal responsibility for their children, are automatically entitled to information from schools, GPs etc and should be consulted on important decisions.
5. ‘If my marriage has irretrievably broken down and I start a new relationship, this is not adultery’
People often assume that if they form a new relationship after they consider that their marriage has broken down irretrievably that this does not amount to adultery. The thinking behind this is that the new relationship was not the reason for the breakdown of the marriage. This is a misconception. The adultery does not have to be the cause of the breakdown of the marriage. For an adultery petition to succeed the petitioner has to prove (usually by the Respondent admitting to it) that the respondent has committed adultery and the petitioner finds it intolerable to live with the Respondent. If after discovering the adultery, the Petitioner then lives with the Respondent for a period of more than 6 months then the Petition will not succeed as the intolerability aspect has not been satisfied.