This article uncovers common misconceptions about family law and explains the reality about pre-nups and divorce.
1. If you are famous you can get a quick divorce
Not true. Although the media frequently reports celebrity breakups as having 'quickie' divorces, in fact all divorces in England and Wales follow the same process. There is no fast track and you cannot pay 'extra' to obtain the final document, the Decree Absolute, more quickly.
You can speed up the process by co-operating with the other party to the divorce, by making sure that all the forms are filled in accurately and swiftly and by hand delivering documents rather than posting them.
However generally, from start to finish once the divorce petition has been issued a divorce will take approximately three to five months. Quite often, specialist family lawyers will advise that the Decree Absolute should not be applied for until and unless there is also a final financial settlement. That is particularly the case where pension benefits are involved.
2. If one person has had an affair, then that will be reflected in the financial settlement to the other person
The breakdown of a marriage causes all sorts of feelings: they range from anxiety to sadness, from to anger to fear of the future and sometimes, sadly, bitterness. It is not at all unusual for the person who has been 'left', especially where their partner has formed a new relationship, to feel that it would be fair when sharing the financial assets for them to have more.
In fact, in English law, the court will not look at the reasons for the breakdown of the marriage. The court is concerned with achieving fair financial settlements that meet both parties’ needs and behaviour is only taken into account in very exceptional and rare circumstances. Whilst sometimes that can be difficult for people to come to terms with, the discretion that a Family Court Judge has in this country means that all the circumstances can be taken into account to try to achieve a settlement that meets both parties’ economic needs for the future. That is why we often hear about people who live abroad trying to have their financial cases heard in court in London.
3. If you live with somebody for six months or more then you are automatically entitled to a share of their property because you achieve the status of a common law wife or husband
It is a commonly held belief that couples who live together but do not marry acquire rights to each other’s property after a certain length of time. In fact, that has not been true since 1753, when the Common Law Marriage Act was abolished.
The starting point for couples who live together is that they have no automatic entitlement to each other’s assets. Generally, property will be divided on the basis of who owns it. In other words, if your name is not on the title deeds then you may face an uphill struggle in claiming a share.
The number of couples in England and Wales who live together is increasing every year. People still make mistakes or assumptions about their legal rights that can cause hardship, especially after a long relationship and if there are children.
Specialist family lawyers can advise about living together agreements and documents to protect property ownership. Those can be drafted by agreement at any time during the relationship but are best considered when a couple starts talking about living together.
4. Pre-nups are only for the rich and famous
It used to be the case that pre-nuptial agreements or pre-marital agreements were associated with celebrities – and it is certainly true that most reported cases of stars in the US include details of a pre-nup. In fact, in this country, if a pre-marital agreement is properly drafted by a competent specialist family lawyer, and signed in good time before the wedding (so there is no pressure at the last minute), then assuming that the couple have disclosed their financial circumstances to each other a court is very likely to uphold an agreement if it is challenged in a subsequent divorce.
Pre-marital agreements can provide certainty. They can be particularly relevant when one half of a couple has either inherited wealth, or anticipates that that might happen in the future. They are often very reassuring for couples entering into a second marriage, especially where there are children from a first marriage. More and more people in this country now have pre-marital agreements.
Some people say they aren’t very romantic, but they could be looked at in the same way as a Will – making provision for somebody that you care about so there is no uncertainty or expensive legal process on death or divorce.