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Divorce – the common misconceptions

Posted on 30th September 2016

Whether it’s on the tube or at a dinner party, I often overhear people talking above divorce. It’s one of those things that people seem to think they know all about. They are usually retelling a traumatic tale of a friend of a friend, and nine times out of ten I’m quite sure that it’s total rubbish. It actually seems to be a case of National Chinese Whispers, as I have realised there are a number of misconceptions about divorce which are actually extremely common. I have set out my top five favourites below:

1. “We’ve been together for years so she’s my common law wife.”

This is a classic divorce myth. It may surprise many people to learn that there is no such thing as a common law marriage and despite common misconceptions, un-married couples do not have the same rights.

2. “They got divorced straight after the wedding.”

No, they didn’t. Unfortunately, no matter how much you regret walking down the aisle, you must have been married for at least a year before you are able to petition for divorce.

3. “I want to get a divorce based on our irreconcilable differences.”

Although this is reported to be the grounds for Brad Pitt and Angelina Jolie’s Hollywood divorce, it is sadly not possible to divorce on this basis in England and Wales. In this jurisdiction, you must show that the marriage has irretrievably broken down and rely on one of the following five facts in support:

  • Adultery
  • Unreasonable behaviour
  • 2 years’ separation (with your spouse’s consent)
  • 2 years’ desertion
  • 5 years’ separation

Unfortunately, this means that if you are divorcing after less than two years of separation, even if the split is amicable, someone still has to be ‘blamed’ in the divorce petition.

4. “My spouse will be punished for cheating.”

However aggrieved you may feel if your spouse has committed adultery, it actually doesn’t make any difference to the division of assets. So no matter which of the five facts above you select, it will have no bearing on your financial settlement.

5. Pre-nuptial agreements

The misconceptions about pre-nuptial agreements in England and Wales seem to tip both ways. Some people seem to think they are fully binding, whereas others claim they have no standing whatsoever in this country. The answer is that it is somewhere in between. Although pre-nuptial agreements are not legally binding in our jurisdiction, case law has established that, providing certain criteria is met, they can be taken into account by a Judge and can in fact carry a great deal of weight

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