Through a combination of mis-reporting and legal complexity, it is common for myths regarding divorce to be confused for common fact. Here are five of those common myths together with the actual facts.
Myth: If a spouse has behaved badly or has had an affair, this will have an effect on how the family finances will be divided.
Fact: Only in rare and extreme cases will a spouse’s marital behaviour affect the division of assets. In most cases it has no bearing on the court’s decisions.
Myth: Prior to filing for divorce, the spouse should ‘dig out’ and copy as much evidence as they can regarding their spouse’s finances.
Fact: Gathering as many facts about a couple’s finances is critical to a successful outcome in financial negotiations. However, the manner in which the evidence is gathered is critical. The court will not look favourably on evidence that is considered to be ‘stolen’. For instance, if a spouse secretly accesses their partner’s computer to download documents, the court may not admit the documents into evidence as the spouse had no implied right to access them. The correct manner in which evidence is gathered is certainly open to interpretation and a solicitor should be consulted to ensure it is done in an appropriate way.
Myth: Long-term cohabiting couples have the same rights as married couples when they separate.
Fact: Legally speaking, a cohabiting couple are treated very differently from a couple who are either married or in a civil partnership. Unlike married couples, partners in a cohabiting couple cannot bring claims against each other for assets such as property or maintenance payments.
Myth: Pre-nuptial agreements in England and Wales are not worth the paper they are written on.
Fact: Historically, pre-nups in England and Wales may have been persuasive in helping the court make a final decision regarding a financial settlement. Nevertheless, the court could also disregard the pre-nup if it considered the agreement to be unfair. This has led to the common view that pre-nups in England and Wales are rarely binding. However, a high profile case in 2010 (Radmacher v Granatino) which ultimately went to the Supreme Court, may now mean pre-nups have more weight. The Supreme Court highlighted that if the pre-nup was entered into under certain circumstances, it could indeed be considered fair. These circumstances included both parties entering into the agreement freely and that both parties also understood that the agreement was legally binding. That said, pre-nups are no more legally binding than they were prior to the Radmacher case, but they do have the potential to be more influential under the right circumstances.
Myth: It is possible to get a ‘quickie divorce’ and be divorced in a few weeks.
Fact: No matter what the media may report about ‘quickie divorces’ in England and Wales, for most people they do not exist. Typically the divorce process will take several months, with a required six week gap between the Decree Nisi and Decree Absolute before the divorce is formalised. Outside of the UK, there are some countries which allow speedier divorces, but the couple would need to have ties with one of those jurisdictions in order to get divorced abroad.
Myth: You have to ask your spouse to agree to divorce.
Fact: Most divorces are granted on the basis of unreasonable behaviour or adultery by the other and their consent is not needed.