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Our top five false-facts about divorce and separation

Posted on 23rd October, 2017

We hear a lot of false-facts about divorce and separation here at Ethos Family Solutions.  Some of them come from a confusion between the law applicable in England and Wales, and the law applicable elsewhere (such as the USA where a lot of celebrity divorces are reported, but even as close to home as Scotland where different laws apply to divorce and separation).

 

This blog outlines the top five false-facts we hear regularly:

 

1. I’m protected as I’m in a common law marriage

People often believe that living together for three years (the length of time may vary but it often seems to be three years) gives them the same rights as married couples.

 

This isn’t true in Wales or in England.  There is no defined legal protection for people who have lived together but were not married (‘cohabitants’).  Apart from child support for any children of the relationship, and a division of any jointly owned property or joint bank accounts, you are unlikely to be able to make any financial claim against your former partner if you weren’t married.  There is sometimes an option to make a claim against a solely-owned property if you’ve contributed to it, but this is far more complicated than for married couples.

 

You can reduce the financial risk by considering entering into a ‘cohabitation agreement’ during your relationship, to set out what would happen in the event of a separation.

 

2. We’ll be able to get a quickie divorce in just a few minutes / a few weeks

There is no such thing as a ‘quickie’ divorce, despite what the media would have you believe. In England and Wales, divorces usually take a minimum of between four to six months to finalise, as long as everyone involved cooperates in doing what needs to be done, when it needs to be done (and that timescale doesn’t include finances and arrangements for children).

 

The decree nisi is the first of the two decrees of divorce and that will be pronounced in minutes by the court (which is probably where the media’s use of ‘quickie’ divorce comes from).  But to get to that stage, there are a number of other stages you will have had to deal with first.

 

And after the decree nisi, there is a mandatory waiting period of 6 weeks before you can apply for the decree absolute, which is when you are finally divorced.  Note that the court won’t process the decree absolute until you apply for it either, so it can take longer again if you don’t apply as soon as you are able to.

 

3. It’s not adultery because we’d separated before I started my new relationship

The fact is, if you’re still married, being in a new relationship with someone else is adultery, even if you were already separated.

 

This means that you can still divorce based on adultery and your ex might well issue a petition against you on that basis.

 

In fact, we usually advise people that divorcing based on adultery isn’t as bad as you might think and is often less contentious than divorcing based on unreasonable behaviour, which would require one of you to make allegations against the other and could result in the petition being defended and the whole process being delayed and becoming more costly.

 

Divorcing based on adultery which occurred after separation but whilst you were still legally married is, in our opinion, far less contentious.  The court won’t think badly of you and there will be no repercussions in terms of arrangements for children or any order dealing with finances. 

 

4. We’ll divorce based on irreconcilable differences

There is only one ground for divorce, which is the irretrievable breakdown of the marriage. This must be proved by one of five different reasons – adultery, unreasonable behaviour, desertion, two years’ separation with consent, and five years’ separation.   

 

You’ll notice that irreconcilable differences isn’t on that list.  Irreconcilable differences isn’t an option for divorce in England and Wales, although many people think it is as it’s a ground that is available in the USA and many celebs divorce on that basis. 

 

In Wales and in England, you simply can’t divorce based on irreconcilable differences.  You have to use one of the five reasons above.

 

5. We’ve divided everything up, so everything is finalised

You may have reached an agreement about finances, and you may even have divided everything up and gone your separate ways, but unless you’ve had a written agreement drawn up, which has preferably been approved by the court, there is still the chance that your ex could make a claim against you many years into the future.

 

Until finances are properly resolved and you can show a concluded agreement, your ex could make a claim against you, even if your circumstances have drastically improved compared to what you had during the marriage.

 

The safest option is to get a consent order drawn up to deal with finances.  You can then send it to the court for approval and that will conclude the arrangements and ensure that neither of you can claim against the other in the future. The court will look at it carefully and won’t just ‘rubber-stamp’ it, but provided you both understand what you’re doing and are happy with the arrangements, it will usually be approved.  It’s unlikely you’ll even have to go to court to have it approved, as it can be dealt with in writing.  So it really is the best option to get finality.

 

If you haven’t completed your divorce yet or don’t intend to, you should still consider drawing up a ‘separation agreement’ to set out the financial agreement between you. That will give you evidence of a concluded agreement having been reached if your ex tries to claim against you in the future.

 

 

If you need help with any of the above, or with any other issue arising from a divorce or separation, get in touch.

 

 

 

 

 

 

 

Paula Tanner

Former solicitor and founder of Ethos Family Solutions 

 

 

Need some help?

01792 420581

family@ethosfamilysolutions.co.uk

www.ethosfamilysolutions.co.uk

 

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