MYTH: My spouse has committed adultery so I must be entitled to a larger financial settlement?
No, you would not be entitled to a larger financial settlement. The court will only take conduct into consideration if that conduct was such that it would be, in the opinion of the court, inequitable to disregard. The type of conduct could be violent behaviour as in the case of H v H (Financial Relief: Attempted Murder as Conduct) the conduct of the husband who stabbed his wife so that she was unable to work was considered as conduct at the very top end of the scale, therefore, the wife’s financial needs were given a higher priority. The same applies to a petition based on unreasonable behaviour.
TRUTH: Can I commence divorce proceedings on irreconcilable differences?
Under the law in England and Wales, there is only one ground for divorce and that is that the marriage has irretrievably broken down. However, you still have to have a fact (a reason) for why your marriage has broken down, such facts are:-
(a) The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) That the parties of the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;
(e) That the parties of the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition.
MYTH: I have lived with my partner for 5 years as his Common-Law Wife. Therefore, I must be entitled to half of his assets if we separate?
There is no such thing as a Common-Law Husband or Wife. Cohabitation is a very complex area of law. It really depends on whether the property you live in is owned jointly because, if it is not, and it is owned by your partner alone, you may not have any financial claims.
TRUTH: I separated from my spouse 6 months ago and recently found out that our joint account is overdrawn, am I legally liable for half of that debt?
Unfortunately many spouses fall into this trap and banks often fail to explain to couples that when opening a joint account, they will both be equally liable for expenditure against that account, regardless of who spent it. Therefore, if you have separated and there is no need to keep the joint account, you should agree with your spouse to close it, or failing which, the account can be transferred to the other spouse. If your spouse will not cooperate with you, you can request the bank to freeze the account but be careful not to fall behind on any mortgage repayments.
MYTH: My Decree Absolute was pronounced last week which means I am safe to purchase a property as my ex-spouse cannot make any financial claims against me.
When you are married, you have financial claims which you can both make against each other. Such claims include claims against each other’s income, capital, property, pension and inheritance; these claims will remain open after Decree Absolute unless you formerly dismiss them. Therefore, it is important to record any agreement reached between you and your spouse regarding the separation of the financial assets within a Consent Order and to apply for a clean break and dismissal of financial claims.
MYTH: We separated two years ago and entered into a Separation Agreement, therefore, we will automatically be divorced after two years.
This is not correct because a Separation Agreement records how parties have divided their assets, it does not end the marriage. You would still have to issue a divorce petition on the ground that the marriage has irretrievably broken down and use the fact that you have both lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (and the respondent consents to a decree being granted). You will also need to convert what was agreed within the Separation Agreement into a Consent Order to make the agreement legally binding and enforceable.
There are many truths and myths surrounding family law, I have only mentioned a few here. If you are in any doubt, please speak to a family law specialist.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.