There are many common misconceptions surrounding divorce, here we dispel some of the most common myths.
My spouse has cheated so they will receive less of the marital finances as a result.
The fact used in the divorce petition, in this case "adultery", has no bearing on the fair division of marital finances. Only in extreme cases would the behaviour of one spouse affect the financial settlement. While morally it may seem unfair to the non-adulterous party, the Court is primarily concerned with reaching a fair settlement that meets the needs of the spouses and their children and the behaviour of the parties is not judged.
I can’t get a divorce as my spouse won’t agree.
Consent from the respondent isn’t always necessary for a divorce petition to progress. If you believe your spouse will ignore the petition and not return the acknowledgement of service, don’t panic, as there are still ways in which you can progress the divorce. In most cases, once the respondent understands that they do not have to admit to behaviour cited in the petition, they will eventually cooperate with the process.
We can cite “grown apart” or irreconcilable differences” as the reason for divorce.
While it may be the case you have simply grown apart, you must use one of five “facts” in the divorce petition. Those facts are Adultery, Unreasonable Behaviour, Desertion, Separation for two years (the consent of the respondent is required), or Separation for five years (no consent is required). The legal reason for granting a divorce is that the marriage has irretrievably broken down and this is established by citing one of the five facts. For same-sex divorces and civil partnership dissolutions, adultery is excluded as a “fact”.
We married while abroad; so we will have to get divorced in that country.
As long as you and/or your spouse are either habitually resident or domiciled in England or Wales, then you should be able to divorce under English & Welsh law. For more information read our article Married Abroad - can I get divorced in England & Wales?
It’s not adultery if you are separated at the time.
Legally, a consensual sexual relationship between a married person and third person would be adultery - even if the married person has been separated from their spouse for some time. So, it would be possible for a spouse to submit a divorce petition on the grounds of adultery, even if the adulterous act occurred after separation.
The person who is at fault for the divorce pays for everything.
Usually, each person is responsible for meeting his or her own legal costs. In cases where the petition is based on either Adultery or Unreasonable Behaviour, it is commonplace to ask the respondent to meet the costs of the petition, such as the legal fees to have the petition completed and court fees. In some extreme cases, if a spouse has deliberately thwarted the court process, and caused high legal costs as a direct result, a costs order may be made so that the non-compliant party is made to pay the costs of the other.
Divorce is very expensive.
Oratto member divorce solicitors offer a wide range of fixed fee family law services, including divorce, consent orders, and financial or child issues consultations. Costs tend to increase quickly when people are in disagreement with their spouse and when a solicitor charges by the hour.
If we have been separated for more than five years we are automatically divorced.
No, that simply isn’t true. You are only divorced once you have obtained a Decree Absolute and even after five years apart you still have legal obligations to your spouse and children. To formally dissolve your marriage you would have to follow the usual divorce process, starting by submitting a divorce petition.
We’ve lived together for years; we have the same rights as married people if we separate.
No, you don’t. Cohabitees have very few legal rights and protection, especially in comparison to married couples. There is also no such thing as common-law marriage – you are either legally married or you are not. For more information on financial provision for cohabitating coupes, click here – The Myth of Common Law Marriage.
The wife always gets the house.
Not necessarily. Sometimes it might be appropriate for the parent who is going to look after the children to stay in the family home until the youngest child is 18, or that parent remarries, at which point it would be sold and the proceeds split amongst the parties in line with their divorce financial settlement agreement. This is known as a Mesher Order and is often used when the property has very little equity in it, or where the parent remaining there is unable to get a mortgage in their sole name.
The Decree Absolute removes all financial links to a spouse.
No, it doesn't. The Decree Absolute means you are no longer married to your former spouse because the marriage has been legally dissolved. However, it does not remove financial ties or resolve any outstanding financial issues. To do this you will need to agree on the financial settlement and have this written up into a legally binding Consent Order, or apply to court if no agreement can be reached.
Mediation is only for people who want to get back together
Mediation is not the same as relationship counselling. Mediation is there to help divorcing or separating couples resolve issues arising from the ending of the relationship, such as disagreements over finances or arrangements for children. Mediators are neutral, so they will not take sides. Their job is not to tell you or your ex-partner what to do, but simply to provide a safe forum and to provide help and support as the two of you work through the practical issues of your break up.
The finances will be shared 50/50.
Sharing the finances 50/50 is the starting point for the court, but is rarely the final outcome. The focus should be on ensuring that the financial settlement is fair to all parties and meets the needs of the family. A straight spilt down the middle may be appropriate for a young couple with no children and who are both financially independent, for example.
The Court will decide everything for us; we have no say in how the finances are shared, or what the arrangements for the children will be.
This is not true. Ideally, you and your spouse will be able to come to an agreement on such matters and your divorce will not need to go to a final hearing. You may wish to use a mediation service to help you work out what those agreements will look like. Contrary to many people's belief, the Family Court does not automatically get involved in the finances or child arrangements. If you have been unable to agree, and mediation hasn’t worked or isn’t an option for you; then either you or your spouse will need to make the appropriate application to the Court to make a decision for you. Most couples do manage to agree between themselves, and it’s not uncommon for couples to reach an amicable agreement after making an application to court.
If you would like to speak with one of our experienced divorce solicitors about any family law matter, please call Oratto on 0845 3883765 or email us - contact@oratto.co.uk
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