June 20, 2019

Fact or fiction – How Much Do You Know?

There are a vast number of myths and misconceptions surrounding the law which applies to relationships.  Can you tell fact from fiction? 

  1. I have lived with my partner for over two years, so I have automatically acquired rights to a share of his property. Fiction – there is no such thing as a common law husband or wife.  If you are married and the relationship breaks down, married couples can make financial claims over the other spouse’s property, pensions and maintenance.  A cohabitee has few – and in many case no – legal claim.
  2. Pre-nuptial agreements are legally binding. Fiction – whilst the pre-nup will be taken into account at the time of divorce, the court has the power to look again at the division of the family’s assets which you thought you had agreed.
  3. I have a decree absolute so my ex can’t now make any financial claims arising from our marriage. Fiction – the decree absolute merely finalises the divorce.  The financial claims still exist.  There have been cases where proceedings to divide the family assets were started many years after the legal end of the marriage.
  4. I have always cared for my son so I must have parental responsibility for him. Fiction – this is not automatic unless you are married to the mother.  If you live with the mother but your name is not on the birth certificate, then you do not automatically acquire parental responsibility.
  5. Our assets will be split 50/50 on divorce. Fiction – This may be true when there are enough resources to meet everyone’s needs and the majority of the assets were acquired during a long marriage through your joint efforts.  The aim of the court is to arrive at a fair result.  That might be an equal split or it could be something very different. Even if the family home is registered in your sole name, you will not necessarily get to keep it on divorce.
  6. I plan to remarry as soon as my divorce is finalised.  I intend to claim my share of the family wealth from my first marriage after the wedding celebrations. Fiction – although there is no time limit on financial claims stemming from divorce, if you remarry, you are not allowed to apply for maintenance, capital or an order changing your share in any property you owned with your former spouse.
  7. Even if we get divorced, I will still receive the widow’s pension if my ex-husband dies before me. Fiction – if you are no longer married to your spouse then you are not eligible as a widow or widower to receive spousal pension benefits.  That can also include some insurance and death in service benefits.
  8. My husband was in the wrong in the divorce so he is entitled to a smaller share of our finances. Fiction – the suggestion that having an affair or acting unreasonably during the marriage will be punished in any financial settlement is largely untrue.  Divorce proceedings and financial remedy proceedings are, for the most part, kept entirely separate. Indeed, under the latest government proposals, we should relatively soon be moving to a “no fault” divorce system.
  9. My spouse and I have agreed everything amicably to sort out our financial settlement.  We do not need to do anything else. Fiction – an informal agreement is not enough to stop future proceedings if one of you should have a change of heart.  A lawyer can convert any agreement that you reach between you into a formal legal document which will preclude any future claim either of you may have against the other. 
  10. I was the breadwinner so when we get divorced I will automatically get more. Fiction –the court will consider each party’s contribution to the family and will recognise and value the significant contribution made by the home-maker.

How well did you score? If you want help sorting out fact from fiction should your relationship breakdown, then ask an expert in family law. At Scott Bailey, we have a dedicated team of specialist solicitors to help you. Contact Sarah Unsworth, Ann Herd or Olivia Dyer at [email protected] or call 01590 676933 so that you can separate fact from fiction.