Family Law Legal Myths

Ellisons Partner and Divorce specialist, Jon Armstrong dispels some of the myths around family law.

Most solicitors will tell you that the New Year brings forth a surge of new clients whose relationships have broken down. Some say that the strain of Christmas causes relationships to break down, whereas for others, the New Year is an opportunity to make a new start and their relationships broke down some time before.

Many people going through a divorce or separation often believe that they know what their legal position is. Unfortunately, they are often mistaken about where they stand. There are a huge number of legal myths which have little or no basis in English law.

Actually, there's no such thing. Common law spouses were abolished by the Marriage Act of 1753. Despite this, the idea that unmarried couples are common law spouses has persisted in the public's mind for over 250 years. The laws that apply to unmarried couples are completely different to those which apply to divorcing couples, and the Court's powers to resolve disputes between the unmarried are currently extremely limited. This can come as nasty and very expensive surprise for cohabitees. While unromantic, seeking advice from a solicitor and entering into a Living Together Agreement before you begin to cohabit is vital.

In fact, the Court very rarely penalise the party who is responsible for the breakdown of the marriage. Whilst conduct is a factor that Court takes into account when deciding financial issues, today only misconduct which is in some way financially relevant or incredibly serious makes any difference.

Pre-Nuptial agreements are worth considering. Once, they were not worth the paper they were written on, but nowadays the Courts will not automatically ignore them. However, under the current law, there are no guarantees that the Court will uphold them, but you are probably better off with one than without.

If only it was that easy. The Court will start off by applying a yardstick of equality. However, it then takes into account various factors such as the parties' financial circumstances, their financial needs, obligations and responsibilities, their standard of living, ages and their financial and non-financial contributions to the marriage, to name a few. No two divorces are the same. While there are some 50:50 cases, these factors usually cause the balance to tip in one parties' favour.

There is no type of divorce which is quicker than another. What varies enormously if how long it takes to sort out ancillary relief, which is the financial side of the divorce. The only real difference is how long you wait before starting the divorce. An adultery or unreasonable behaviour divorce can be started straight away. Desertion or two years separation with consent involves a two year wait and divorce proceedings where there is not consent from one party requires five years separation which takes five years and cannot be any quicker. However, once you issue the divorce petition, the timescales and procedure are the same.

It can seem like that sometimes, but they usually aren't. In a divorce, wives generally are the ones who earn less, have fewer assets and who have the children with them. The Courts have to redress that imbalance so the husband may feel that the wife ends up better off. Solicitors aim to ensure that what you end up with is fair. When the Courts are deciding what happens about children, some men feel that courts are biased against them. In fact, the Courts are reluctant to change the status quo. If the kids are already with Mum, the Court needs a very good reason to send them to Dad. Courts are usually very keen to ensure that fathers get to see their children as often as possible if the children live with Mum, and vice versa.

There are many other myths which solicitors have to deal with all the time. The biggest myth of all is that solicitors are only interested in making money at your expense - untrue but it makes good television..

Most divorce lawyers are members of Resolution (formerly the Solicitors Family Law Association) a group of around 5,000 independent family lawyers who are committed to easing the pain and financial costs of family breakdown. They follow a Code of Practice which encourages solutions rather than confrontation and which takes into account the needs of the whole family. Some members are accredited specialists in different areas of family law. Others have qualified as collaborative lawyers and can work together with you and your spouse and his or her lawyer at face to face meetings to find a solution that is right for all of your family.