As many a Family Law Solicitor will inform you, much of the time we answer the same questions, but the advice given will rarely be the same as each client and their circumstances are always different.
Sometimes clients will first meet a Family Lawyer thinking that they already know the Law when, in fact, they have believed a myth. This article considers five common myths in Family Law.
1. Two Years Separation
It is a widely-held belief that when a married couple have been separated for over two years, they can automatically divorce.
In England and Wales, even if you have been separated from your spouse for at least two years, the other spouse still has to provide their consent to divorce. A Divorce Petition still has to be issued and the divorce procedure still has to be followed.
If both parties are willing to proceed on the basis that they have been separated for over two years, then the divorce is less likely to be acrimonious than if there were allegations of unreasonable behaviour being raised.
Unfortunately, there are occasions when a party will wait two years before seeking legal advice, only to discover that their spouse refuses to consent. At that point the spouse will be recommended to resort to citing unreasonable behaviour in a Divorce Petition and it may only then dawn upon them that they may have wasted two years in waiting.
2. Adultery and Finances
Another divorce myth is that a client may be entitled to a greater share of the matrimonial assets because their spouse has committed adultery.
Clients should be informed at an early stage that divorce and finances are two separate issues. The fact of adultery is relied upon to evidence the irretrievable breakdown of the marriage, whereas the finances are generally dealt with on a “needs basis” as set out in Section 25 of the Matrimonial Causes Act 1973.
3. Common Law Marriage
“Common law marriage” is another myth that often rears its head. Simply living with a partner, whether for a few years or more, does not automatically give rise to rights that are available to married couples.
In 2013, Resolution (the Family Lawyers’ governing body) commissioned a survey which disclosed that 69% of Parliamentarians agreed that there is a mistaken belief in the existence of “common law marriage” amongst their constituents.
Clients often fail to seek advice prior to marrying or cohabiting, and unfortunately, the financial remedies available to cohabitees differ vastly from those that are available to married couples.
4. Legal Aid
Legal aid being available to those wanting to divorce is another common misconception.
From April 2013, Legal Aid is only available on divorcing to those who have been victims of domestic violence or abuse, and only if they qualify for it financially.
5. Quickie Divorce
Finally, the media will often refer to a celebrity obtaining a “quickie divorce”. Celebrities are often reported as having been granted a divorce upon obtaining Decree Nisi.
This myth can be very frustrating for solicitors who then have to explain that a favourite celebrity still has to obtain their Decree Absolute and that everyone is bound to follow the same procedure.
There are special time frames in divorce proceedings that have to be respected, such as the six week and one day rule between the granting of Decree Nisi and the first date on which Decree Absolute can be applied for.