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Anita Shepherd – family solicitor and head of the Family department discusses some of the common myths and misconceptions in Family Law…
It is a regular occurrence when I am advising a client on relationship breakdown that they claim to have been advised as to their rights by friends, acquaintances, relatives or colleagues. It always surprises me what people believe and this misinformation can add to the confusion and distress in an already significant life event. Many have a tendency to generalise about what happens in ‘every divorce’, or else they spread completely wrong information about what the process entails.
So, I have chosen some of the most common myths and rumours that I have come across during the last 15 years that I have been practising Family law.
1. Although we are not married I am his common law wife as we have been together a long time and have children so I have rights as if we were married – everything should be split 50:50.
Not true! Cohabitees/unmarried couples do not have the same rights as married spouses no matter how long they have been together nor whether they have children. It is astonishing how widespread this myth is – in fact, unmarried couples do not have rights or claims in relation to their partners assets/property even if they have lived in the property.
2. He/she will get a reduced share of the assets as he/she was to blame for the breakdown of the marriage.
This is a difficult one for clients as people think that if one party is to blame for the breakdown of the marriage, such as walking out or having an affair, they should not be entitled to an equal/fair split of the assets. This is not the case. The division of marital assets is completely separate from how the marriage broke down. The emphasis in divorce has moved right away from blaming one person or the other. It is extremely rare for a court to be interested in whose fault the break-up was, and it is only in exceptional circumstances that a person’s conduct will have any bearing on how assets of a marriage are divided as they will be divided in accordance with the party’s needs, requirements and resources.
3. He won’t see the kids if he doesn’t pay child maintenance OR she won’t let me see the kids so I’m not paying child maintenance.
These are very common misconceptions and are both wrong. Either scenario may not seem fair but the law is very clear on this. The courts treat issues about children and money as being completely separate. An absent parent is under a duty to pay child maintenance whether or not he/she see their children. This is because it is the child’s right to grow up knowing both of their parents provided it is safe to do so. In addition, a parent has the right to see his/her children whether or not he/she is paying child maintenance. Separating parents should be careful not to confuse children issues and money as this may not be in the child’s best interest as the children end up being deprived of a relationship with a parent due to a dispute between the parents which can have lifelong consequences for the child.
4. I wasn’t unfaithful as we were already separated.
Most people think that being unfaithful means having an affair when you are in a stable relationship with a partner, married or not. In my experience many people think you can’t be unfaithful to someone if you have already separated from them. Morally, that may be right but not so in divorce law. ‘Adultery’ means having a sexual relationship with a person other than your spouse while you are still married to them. It is irrelevant whether or not you are separated. If one spouse has been unfaithful during the marriage, then this is a ground for divorce under the current divorce law (unless you live together for six months or more from the date you discovered the adultery then you are debarred from relying on this ground for divorce).
5. He/she isn’t entitled to my assets because they are in my sole name.
Not true. As long as the marriage was not extremely short, almost everything owned by both the spouses, whether in sole names or joint names, will be viewed as a ‘matrimonial asset’ and will be considered as the property of both and will be divided between the spouses upon divorce in accordance with their needs, requirements and resources. It is therefore important for clients to tell their solicitor about all the assets as the court has the power to transfer an asset from one spouses name to the other no matter whose name it was originally owned by.
6. We have divided our assets between ourselves and obtained our divorce/decree absolute from the court so my ex-spouse has no claims on anything I have post divorce.
Not quite true. Financial claims for spouses remain live against each other after the divorce and until a financial settlement has been determined by the court or approved in a ‘Clean Break Consent Order’ following agreement between the spouses.
7. The debt is in joint names but I never spent the money so I won’t be liable to repay it.
Not true. Debts can be a central source of dispute following the break-up of a marriage because unlike assets, the court does not have the power to remove a person’s name from a debt, regardless of who spent the money. If the credit card bill is in joint names, then the credit card company has the right to come after both of you or one of you for the money until the debt is paid. If the credit card is in the name of one party only and the other party spent the money they will seek repayment from the person whose name is on the account only. I am sure you will be relieved to hear that the divorce courts can take debts into account in the financial settlement and if one spouse is to take on the matrimonial debts, then they may be entitled to a larger share of the marital assets.
8. He/she won’t be able to touch my pension.
This is completely wrong. The divorce law relating to pensions changed in 2000 and is relevant to all divorce petitions filed before 1st December 2000. Pensions are a rather complex area but spouses need to be aware of the simple fact that the court has the power to split pension funds to create two new, completely separate, pension funds. Factors which govern how the a pension fund(s) is split depends on whether the fund was built up during the marriage, how much it is worth, how long it is until the benefits kick in, and what other assets there are available in the marriage. Pensions are therefore a very relevant asset in divorce and often play a large part in deciding how the assets should be divided between the spouses.
To sum up, the important message/ moral of the story for couples embarking on a separation is to not listen to supposedly well meaning gossip/guidance from third parties. Always consult a solicitor who is a resolution accredited specialist in family law as they will be able to provide clear and pragmatic advice in respect to rights, obligations and options. This will achieve a separation/divorce which is fair, amicable and cost effective for all involved.