Going through a divorce is one of the most stressful times in a person’s life but there remain several “myths” around the process that need to be dispelled, according to a leading legal expert.
Chris Longbottom, partner and head of the family law team at Clarke Willmott LLP, says the process doesn’t need to be difficult if couples access the right advice at the right time.
He says there are several misconceptions around divorce and marriage procedures in general that need to be cleared up.
Prenups aren’t really worth anything
“Prenuptial agreements are not legally binding in this country, but if they are prepared properly, then the court is unlikely to interfere with them on divorce,” says Chris Longbottom.
“If the court concludes that the prenuptial agreement is fair and sees that you are both consenting adults who signed the agreement with the assistance of lawyers and with other requirements met, it is unlikely to intervene.
“There is nothing wrong with ring-fencing assets, but the agreement must consider the reasonable needs of both parties and any children. A prenuptial agreement must be prepared properly and ultimately be capable of being considered ‘fair’ in the eyes of family law. To ensure this, specialist legal advice is strongly recommended.”
Automatic common law marriage rights
“Another common misconception is that in long-term unmarried relationships, you have automatic rights to share assets in a ‘common law marriage’, but this is not the case,” says Chris Longbottom. “You could have paid half the mortgage on a house for 20 years, but without evidence of a common intention that both parties would benefit, you may not be entitled to a share of the house.
“If you have done something over and above what someone renting the property would do, like paying for work on the house, you may be entitled to more, but you may need to demonstrate evidence of some kind of agreement that says this entitles you to a share of the property.”
Is shared care of children a 50-50 split?
“It is often assumed that shared care (or ‘shared custody’ as it is often called) of children means a 50/50 split, but this is rarely the case.
“The legal starting point is the best interests of the child, so shared care may look different from case to case. It may mean that the child spends weekdays with one parent and weekends with the other, but it may also look like alternating weeks or anything in between.
If the parents live far apart or even in different countries, the child may be with one parent during term time and the other during school holidays.
“In court, the parents’ wishes are second to the child’s needs. If the child is of an age and (importantly) understands the implications of the decisions they make, he or she may have a direct say in the division of care which would be taken into account by the court if the parents cannot agree.”
If I instruct a lawyer I will have to go to court
Chris Longbottom says: “There are a number of alternative dispute resolution options that a lawyer can explore with you, including mediation, lawyer assisted and child inclusive mediation, collaborative law, arbitration and round table meetings. There is no one size fits all approach.”
A divorce brings an end to the financial ties between spouses
“A divorce will bring a legal end to the marriage, however it does not automatically deal with financial matters,” says Chris Longbottom.
“If the financial claims relating to the marriage are not officially terminated with a separate financial order from the court, those financial claims remain live and can be pursued at any point in the future, even if this is decades after the separation.
“The severance of financial ties is not something that happens automatically with a divorce. It is vital that you seek legal advice and ensure that financial claims relating to the marriage are terminated.”
There is a standard formula for dividing assets on divorce
“This is not the case. Every matter is dealt with on its individual circumstances, having regard to a range of relevant factors, including the needs of the parties and any children of the family.”
Chris Longbottom says divorce doesn’t have to be a complicated and unpleasant experience.
“We help a lot of clients use alternative dispute resolution (ADR) which helps to avoid delays as well as the stress of court proceedings,” he said.
“If you have decided on a divorce, separation or civil partnership dissolution accessing advice from a professional early on is the best way to move forward positively. Don’t let myths and preconceptions put you off.”
Clarke Willmott’s Parting Ways tool can be found on its website and guides users through a series of questions before generating a free report tailored to their responses.
To find out more or to access the online resource visit www.clarkewillmott.com/parting-ways.
Clarke Willmott is a national law firm with offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton, and Taunton.
For further information visit www.clarkewillmott.com.