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27 August 2020

Common family law misconceptions

There are a number of myths and misconceptions surrounding family law. This is unsurprising given the complexity of family law in this country. It is important that no matter how well-meaning a family member or friend may be in sharing their experience with you, no two cases are exactly the same. It is prudent to obtain legal advice to understand the legal rights and obligations relevant to your situation.

‘I am a common law spouse’

It is a commonly held belief that couples who live together for a certain period of time and / or have children, obtain the status of common law spouses. While Common Law Marriage used to exist in this country it was abolished in 1753. Couples who live together do not automatically have the same legal rights as those who have been married or are in a civil partnership. There are no rights to share assets or to request ongoing financial assistance by way of spousal maintenance, even if one party has given up work to look after the children.

People still make assumptions about legal rights which can cause hardship, particularly after a long relationship with children.

If you want to provide or receive protection on the breakdown of a cohabiting relationship you will need an agreement called a living together or cohabitation agreement. As specialist family lawyers we can advise you as to what your rights are and prepare the agreement for you.

‘My spouse’s conduct means I am entitled to more’

It is fairly common to hear people going through a divorce due to their partner’s adultery or unreasonable behaviour to state that their partner should have less because they caused the breakdown of the marriage. While this is understandable, in this country the reason for the breakdown of the marriage and a person’s conduct are rarely taken into account. The court is concerned with achieving a fair financial settlement that meets the needs of both parties.

‘Decree Absolute stops my spouse making a financial claim against me’

Decree absolute is the final decree within divorce proceedings and confirms that a couple are no longer married. What it does not prevent is your former spouse making a financial claim against you in the future even if you have sold the family home and distributed the proceeds.

The solution is simple. When you reach an agreement you need to make sure you get a financial order drafted reflecting the agreement and have this filed at court for the Judge’s approval in order to make that agreement binding.

‘Pre-nups are only for the rich and famous and aren’t legal’

It used to be the case that pre-nuptial agreements were the preserve of the rich and famous. Nowadays they can be particularly useful where, for example, one half of a couple has significant wealth, perhaps inherited, or upon entering a second marriage, especially when there are children from a first marriage.

Pre-nuptial agreements are not legally binding in England and Wales following the 2010 Supreme Court decision of Radmacher. However, the court will uphold a pre-nuptial agreement that is freely entered into by each party with a full appreciation of its implications, in good time before the wedding, unless in the circumstances it would not be fair to hold the parties to it.

While they can be seen as unromantic, they help provide certainty and transparency, and can be viewed in the same way as a will. They provide for someone that you care about so that there is no uncertainty or expensive legal process on death or divorce.

‘The family courts favour mums’

When it comes to making decisions about what should happen with the children there is no one better placed to do this than the parents. You do not have to go to court and ideally if there is a dispute you can resolve it through collaborative law or mediation. If that is not possible and you need to go to court, the court does not favour mums. There is a presumption that, provided it is safe to do so, both mum and dad should be involved in the child’s life. The court’s focus is on the child and what is in their ‘best interests’.

Shared care orders whereby the child lives with both parents are increasingly common.

If you require legal advice in respect of any of the issues raised within this article please contact a member of our specialist family team who will be able to assist you.

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