There are many misconceptions about the divorce process. We take a look at some of the most common and explain the truth behind the myth.
1. I will have to allege unreasonable behaviour or adultery to get a divorce
This is not true, you simply need to tell the court that your marriage has irretrievably broken down. If you and your spouse wish, you can make a joint application for a divorce. Otherwise, it is open to you to make an application yourself. Your spouse cannot contest this.
2. The divorce takes years to finalise
The actual divorce process takes around six months. Once the initial application has been received by the court, there is a 20-week cooling-off period before you can ask the court for a conditional order for divorce. You then need to wait a further six weeks before the court will make a final order.
However, it is recommended that you take legal advice before finalising your divorce as you may need to deal with other issues, such as a financial settlement and arrangements for children.
3. I will have to go to court to get a divorce
It is unusual for someone to need to go to court to deal with a divorce. The divorce process itself is generally dealt with remotely. Financial orders and child arrangements orders are usually dealt with by way of consent. You will agree on what is to happen with your spouse and your solicitor will draft a consent order setting out the terms and send it to the court to ask for approval. If the court approves it, the order will be sealed and the arrangements will be legally binding.
If it is not possible to reach an agreement by way of negotiation, mediation is usually the next step. A mediator will try and help you both to settle your differences and find an acceptable solution. The court is only used as a last resort if all other attempts to deal with matters fail.
4. You do not need a financial order if you part amicably
Even if you and your spouse can agree between yourselves how to deal with your finances, it is still crucial to have this agreement put into a consent order and sealed by the court. Without order, it would be open to your former partner to make a financial claim against you long into the future. This is because marriage is a financial obligation for life and this obligation does not end with divorce unless the court makes a final order.
5. The house is in my name so it is not a matrimonial asset and cannot be shared
All assets that each of you owns will generally be considered to be matrimonial assets to be divided fairly on divorce. Even if you hold property in your own name, this will be taken into account when considering the splitting of assets.
6. Assets are split 50:50 on divorce
Although the starting point for the court is usually a 50:50 split, it will take into account several factors, including:
- The earning capacity and total income of each of you
- The financial resources available to you, now and in the foreseeable future
- Loss of benefits such as pension provision
- The standard of living you enjoyed during the marriage
- Your ages
- The length of the marriage
- Any disabilities
- The contributions made by each of you, including looking after children and caring for the home
- Occasionally, conduct
This means that the court could decide to award one party more in available assets than the other, for example, where one party has given up a career to raise children.
7. The wife always gets the family home on divorce
This is not true. The court will always prioritise the best interests of any children of the marriage. If the wife is caring for the children, it may be considered best that she retains the family home. There are a number of ways in which the court can deal with this, for example, the other spouse could receive a larger share of other assets by way of compensation or the court could order that the property be sold when the children reach 18.
8. A common law marriage gives you similar legal rights to marriage
Couples who live together have far fewer rights than married couples. If a shared property is in only one name, the other party will not usually have any rights to this unless they have agreed that they will have a beneficial interest in it or they have made substantial contributions such as mortgage payments or funding major improvements.
There is no right to maintenance for either party, although maintenance will still be payable in respect of any children of the relationship.
9. Mothers are always given custody of the children in a divorce
The courts always prioritise the best interests of the children when putting arrangements in place. They prefer that children have a meaningful relationship with both parents. If asked to consider with whom a child should live, they will take into account issues such as who has carried out the bulk of the childcare to date and the effects on the child of any proposed changes. Don’t be misled, a father’s rights are always considered.
10. A child will live with one parent and spend a day each weekend with the other
It is open to you and your partner to make the arrangements that best suit your family. While many families opt to have a schedule that involves one parent seeing the children at the weekend, you can choose a different option if you believe it is better for your children. Scheduling a parenting plan is simply a part of the process.
Contact Our Family Law Solicitors
We have a high level of experience in helping clients through the difficult process of divorce, division of matrimonial assets and making arrangements for children.
If you would like to speak to one of our expert family law solicitors, email us at info@witansolicitors.co.uk or fill in our contact form and we will talk through your situation with you and discuss the options available. We have offices in Birmingham, Northampton and London.
