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Divorce: common misconceptions

Posted on: 9th November 2016

This month the Office of National Statistics will release its annual divorce statistics and while divorce has hit the headlines this year with news of the ‘Brangelina’ split, there are still many myths about divorce, says Jacqueline Major, one of the UK’s leading divorce lawyers.

Jacqueline Major, Head of the Family team at Hodge Jones & Allen says: “Whether it’s on public transport or at a dinner party, I often overhear people talking about divorce. It’s one of those things that people think they know all about but if they come to experience it first-hand, they soon discover that much of what they believed was in fact not true.”

Jacqueline has outlined five of the most common divorce misconceptions:

1: “We’re divorcing because of ‘irreconcilable differences”

Although this is reported to be the grounds for Brad Pitt and Angelina Jolie’s Hollywood divorce, it is 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

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.

2: “I’ll get everything because he/she was cheating”

If your spouse has committed adultery it does not make any difference to how your assets will be divided. “Conduct” by a spouse, be it adultery or unreasonable behaviour is rarely applicable, and will only affect finances if it is really heinous. For example, attempted murder of a wife was taken into account as conduct, but in another case actual bodily harm that resulted in a criminal conviction was not.

3: “She’s my common-law wife…”

Contrary to popular belief, there is no such thing as a common-law husband or wife and unmarried couples have fewer financial rights than married couples or those in a civil partnership. Married people have financial claims given by statute over property, pensions and maintenance, all of which can include assets held in their partners’ sole name, whereas cohabitees have much more limited (and in some cases no) claims.

4: “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.

5: “We had a pre-nuptial agreement so there won’t be any problem”

Premarital agreements aren’t legally binding and it would need a change in the law for them to become so. However, a recent case said that if the agreement was properly drawn-up there was no reason why it should not be fully taken into account.

A premarital agreement should show:

  • That both you and your partner obtained separate independent legal advice;
  • Disclosure of both parties assets and income (which will be attached to the agreement);
  • That there is no duress;
  • The agreement being completed at least three weeks before the marriage – there is no point in trying to get your fiancée to “sign this” on the eve of the wedding – that would count as duress;
  • Also: beware unforeseen circumstances. The court can always take changes that occur in the parties lives, if they are material to finances, into account.

Ends

For further information, please contact:
Louise Eckersley on 020 3567 1208 or email: louise.eckersley@blacklettercommunications.co.uk

Notes for Editors

Hodge Jones and Allen

  • Hodge Jones and Allen is one of the UK’s most progressive law firms, renowned for doing things differently and fighting injustice.
  • For almost 40 years’ the firm has been at the centre of many of the UK’s landmark legal cases that have changed the lives and rights of many people.
  • The firm’s team of specialists have been operating across: Personal Injury, Medical Negligence, Industrial Disease, Civil Liberties, Criminal Defence, Court of Protection, Dispute Resolution, Employment, Family Law, Military Claims, Serious Fraud, Social Housing, Wills & Probate and Property Disputes.
  • Co-founder Patrick Allen is still at the helm of the firm he co-founded in 1977.
  • In 2016 the firm launched Hearing their voices – a campaign to raise awareness and build conversations around the issues and the injustices we might all face.

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