At Haris Law Solicitors, we often encounter recurring myths surrounding divorce. These misconceptions can lead to unnecessary confusion, and in some cases, could cause significant issues if relied upon as fact. Below, we debunk five common myths in family law to help you navigate your rights and responsibilities during a divorce.
Myth 1: Common Law Marriage Provides Financial Rights
A pervasive myth suggests that cohabiting couples automatically gain rights similar to married spouses after living together for a certain period, often believed to be two years. However, in England and Wales, there is no such thing as common law marriage. Cohabiting couples have no automatic financial claims upon separation, regardless of the duration of their relationship.
The situation differs slightly in Scotland, where cohabiting couples have limited rights, but even there, the concept of “common law marriage” does not exist. As the law currently stands, assets are divided based on legal ownership. For example, a property registered in one partner’s name remains theirs, and debts follow the same principle.
If you are cohabiting, it is wise to protect your position through a cohabitation agreement. This legal document can clarify intentions regarding property and finances, offering peace of mind in the event of a separation.
Myth 2: A Final Divorce Order Ends Financial Claims
Many believe that a final divorce order, previously known as a decree absolute, automatically resolves all financial matters. This is untrue. Unless a financial order—such as a clean break order—is agreed upon, financial claims remain open even after the divorce.
For instance, if one party wins the lottery or inherits a substantial amount years after the divorce, an ex-spouse may still pursue a financial claim. This can lead to costly and stressful litigation. To avoid this, we strongly advise clients to obtain a clean break order during divorce proceedings, ensuring financial independence for the future.
Myth 3: Fault in the Relationship Affects the Financial Outcome
It’s a common misconception that if one party is at fault for the breakdown of the marriage—due to infidelity, for instance—they will face financial penalties. However, the legal system in England and Wales does not assign blame or fault in determining financial settlements.
Since the introduction of no-fault divorce in 2022, the courts focus solely on fairness and the needs of both parties. Only in rare cases of extreme post-separation misconduct might bad behaviour influence financial outcomes. For most divorces, conduct during the marriage does not affect the division of assets.
Myth 4: You Must Divorce in the Country You Were Married
Contrary to popular belief, you are not required to divorce in the country where you got married. Jurisdictional rules vary, and it’s crucial to understand which jurisdictions apply to your circumstances.
England and Wales, for instance, follow principles of fairness when dividing assets. Other jurisdictions might exclude certain assets, such as those inherited or acquired before the marriage. Depending on your situation, filing for divorce in one country versus another could lead to significantly different outcomes. Always seek advice on jurisdictional options to make an informed choice.
Myth 5: Pre-Nuptial Agreements Are Not Enforceable
Pre-nuptial agreements have long been dismissed as ineffective, but this is no longer the case. Since the landmark ruling in Radmacher v Granatino (2010) and subsequent recommendations from the Law Commission, these agreements carry considerable weight in court if properly drafted.
While not yet 100% binding, courts often uphold pre-nuptial agreements or use them to guide decisions, especially when both parties received independent legal advice, fully disclosed their financial situations, and signed the agreement well in advance of the wedding.
If you’re considering a pre-nuptial agreement, consult a solicitor to ensure it meets all necessary requirements for enforceability.
Need Expert Advice?
At Haris Law Solicitors, our experienced divorce and finance team is here to provide clarity and guidance on all family law matters. Whether you need assistance with cohabitation agreements, financial orders, or jurisdictional advice, we are just a call away.