I have been dealing with relationship breakdown for many years now, and during this time the myths that people believe in still have not changed.
Myth No.1: the common law spouse myth
My top most popular myth is the “common law spouse” myth. I still have people phoning me asking me whether it is true that if they have lived with their partner for seven years or more they acquire the same rights as they would had they married. This is simply not true.
Unfortunately, many couples who cohabit, own property together and go on to have children together, remain unaware of this fact. It is usually the mother of the children (I make the general assumption that the mother is the primary carer for the children, and that the father is the breadwinner, which is not always the case) who is financially disadvantaged when the relationship breaks down. As more and more couples are choosing to cohabit rather than marry, I believe the government should be doing more to educate people and dispel the common law spouse myth once and for all.
Myth No. 2: the quickie divorce
I still regularly read in the press that such and such a celebrity obtained a “quickie divorce” and “in just 90 seconds”. This is misleading. It takes months from the start of the divorce process to obtain Decree Absolute, which is the final order of divorce. It is also important to realise that it is usually disagreements over finances or children that cause matters to become delayed, rather than the divorce process itself.
I still receive calls from people asking whether I can do a “quickie divorce” for them. Neither I, nor any other solicitor can do this, and this is not a reflection on our skill or expertise! What we can do is provide an efficient and streamlined service so that a divorce can be achieved as soon as possible, depending on the delays at the particular court in which proceedings are started.
Myth No.3: adultery
Another popular one is the person who has embarked upon an affair will be penalised for their behaviour in the financial award on divorce. This is not correct. It is a fact of life that people engage in affairs and that these often lead to the breakdown of marriages.
Unless the spouse who has committed adultery has frittered away substantial amounts of the matrimonial money or assets as a result of his/her affair, there will be no impact on the financial outcome.
Myth No.4: custody doesn’t exist
There is no such thing as “custody” and “access”. It has been some time since the law changed so that these terms are “residence” and “contact” respectively. It is expected that the law will change again fairly soon as a result of proposed legislation going through parliament.
Myth No. 5: no maintenance, no visitation
It is not acceptable in matters involving children for the parent responsible for paying maintenance, to stop payment if he/she is not able to see the child.
Our courts expect that these two issues be dealt with completely separately. The reasoning behind this is so that the child should not be punished by not being able to see one of his/her parents.
Myth No.6: wives don’t pay maintenance
It is not correct to assume that it will always be the husband who ends up paying his wife maintenance on separation or divorce. Each case will be determined on its own facts. If the wife is the primary breadwinner then she may be called upon to pay spousal maintenance to her husband on a divorce.
Myth No.7: mediation leads to reconciliation
The process of mediation to resolve disputes involving finances and children on family breakdown is being promoted by the government to lessen the burden on our courts and the Legal Aid system.
Despite the government’s promotion of this process, it seems that many members of the public still believe that mediation involves couples counselling with a view to reconciliation. This is not correct. Solicitor mediators who specialise in family law are there to facilitate discussions between parties who have decided that they wish to separate and need assistance in reaching an agreement with regard to their financial affairs and/or children. The mediator does not counsel the couple.
Myth No. 8: prenups are binding
It is not correct that pre-nuptial agreements are now binding in this country. Our courts still have discretion to apply some or all of the terms in such an agreement, and will not do so in all cases. It is correct that the courts will consider the terms and consequences of a pre-nuptial agreement and decide how much weight to give it in the circumstances of a particular case.
Louise Barretto is a Family Law solicitor dual qualified in England and Wales and South Africa. She has been practising Family Law since 1993 and specialises in divorce and resolving financial and children matters on relationship breakdown. Louise has been called on to assist as an expert witness on English Family Law and divorce in the High Court in South Africa. Although experienced in litigation, Louise has a passion for exploring alternatives to litigation for her family clients and is a qualified family mediator and a Collaborative Lawyer.
Fisher Meredith is a law firm that offers a wide range of legal services to individuals, businesses and other commercial organisations. www.fishermeredith.co.uk/