As a divorce lawyer there are a few myths which come up time and again when advising people or even when just chatting to friends and family. The concerning thing is that people may be relying on these myths as true and storing up a big fright for their future. McAlister Family Law Partner, Lisa Brown debunks 5 scary myths for Divorce Lawyers.
- Common law marriage exists – many people believe that after a certain period (usually 2 years) people who live together become common law spouses giving them additional financial rights on separation. The reality is there is no such thing. The position in Scotland is slightly different to England and Wales and cohabiting couples do have some rights but there is no common law marriage. In England and Wales there are often debates about changing this area of the law but, as it stands, nothing has happened.
Therefore, unless and until the law changes, whether you live together 3 years or 30 the position is the same. The assets will be divided in accordance with the legal title, so if a property is in your name, it is yours and if a debt is in your name, it is yours.
There are some limited exceptions if there is a potential claim under trust law or a claim for a child, however, it would not be sensible to rely on this as neither are particularly easy to bring. What cohabiting couples need to do is ensure that they are content that the position on separation would follow the legal title or, if not, enter into a cohabitation agreement or similar to set out the intention.
- A final divorce order (previously decree absolute) means that all financial claims have come to an end. Without a final financial order (separate from a final divorce order) claims remain alive unless you remarry another person. This means that if you don’t have a financial order should you win the lottery you could face a financial claim from an ex you divorced years before. Whilst such a claim might be limited it could be expensive and stressful to sort out and the best advice is to get a “clean break” order drawn up as part of the divorce proceeding so it doesn’t come back to haunt you.
- If you cheat or are the one to end the relationship you will be penalised. There is often a perception that if the end of the relationship is one person’s “fault” that person could or should end up in a worse position. In fact, the law does not support this. Fault based divorce has now been abolished and, in respect of financial claims, the law will not treat the perceived villain of the piece as any different to the other party. Certainly, the courts are not prepared to delve into a marriage and pass judgement about who was wrong and who was right.
There are some limited circumstances where a party could be penalised financially for behaving badly but this tends to be related to their conduct after separation and/ or as part of the litigation (although not always) and it is very rare.
- You must get divorced in the country you were married. This one could cost you significantly depending on the jurisdictions involved. You do not have to get divorced in the country you were married and in fact it may make no sense to do this if that is the only connection you have with that country, for example. What you should do is consider which jurisdictions may apply and take advice in each as the rules which they apply to determine the finances could be significantly different. For example, England and Wales have a fairly “grey” set of rules which allow judges to look at overall fairness, but many other jurisdictions are more black and white and will have a blanket exclusion of assets such as inherited assets, assets accrued prior to the relationship and so on. This could be an advantage or a disadvantage depending on your particular circumstances.
- Pre-nuptial agreements aren’t worth the paper they are written on This one is perhaps a historic carry over. The position shifted post the case of Radmacher v Granatino in 2010 and this shift was supported by the Law Commission report published in 2014. Whilst the law has not shifted as far as making these agreements 100% legally binding yet it in also not accurate to suggest they are worthless.
If drafted properly the court may well uphold them in full or, at least, the outcome may be affected by the existence of the agreement and in recognition of the parties’ intentions when they signed it.
There are various boxes which should be ticked in terms of these types of agreement to give them the best chance of being enforceable and so it is really important to take advice about this well in advance of a marriage, if at all possible.
If you have any questions on the above, or any other family law issue, a specialist member of our divorce and finance team would be happy to help. Please contact us on [ ]
