Dispelling the Myths and Misconceptions of Family Law – Part One

Assumptions are often made about divorce and what will happen in the event of a separation. Many people have heard stories from others about their experiences, so it is easy to hold a mistaken belief about what will or won’t happen. The problem is that no two separations are the same. Every single case I have ever had the privilege of dealing with has been different. A misunderstanding about how things might play out can be dangerous, causing unnecessary anxiety and unrealistic expectations. That’s one of the reasons why taking advice from a family lawyer early on in the process can be invaluable. You may choose not to instruct a solicitor to deal with everything, or even anything, but the value of understanding how your individual circumstances are likely to be handled is priceless, and will almost certainly save you time, money, and, above all, stress.

Below, I will outline some of the common misconceptions we come across as family lawyers, and provide the truth and the reality behind the legend.

There is such a thing as common law marriage.

Sadly not. At present, the legal system fails to protect the increasing numbers of people who choose to co-habit without marrying. There is a significant difference between how finances are addressed by the Court for people who are married and those who are not. For married couples there is extensive legislation providing for a variety of financial claims against one another. For un-married couples, their claims will be limited to financial contributions they may have made to property and even those can be difficult to demonstrate. Claims increase marginally where children have been born to the relationship, but again these are far more restrictive.

It is important that more people are aware of their position. Marriage isn’t for everyone, but until the law is brought up to date with the reality of modern relationships, people should be informed about their situation and think about what might happen in the event of a separation. I encourage anyone purchasing or sharing a property with a partner, to think about having a Co-habitation Agreement drafted, so that you are both prepared for what will happen if things do go wrong.

Mothers always get custody of the children.

There is absolutely no foundation for this and I have represented many fathers over the years who have successfully gained, or retained, the primary care of their children. The reality is that mothers are more often the primary carer for their children, and the Courts will not seek to change those arrangements where they are working successfully. However, the reverse can equally be true. The Courts hold no pre-conceptions that the mother should be looking after the children for the majority of the time. In fact, their focus is on what arrangements are in the best interests of the child or children, and their starting point is a presumption that both parents should be spending time with their child(ren). Each case will turn on its individual facts, and Child Arrangements Orders can provide for the child(ren) to live with one or both parents and will almost always outline in detail the time which the child(ren) should spend with each, however that may look.

In many cases there is no need for the Courts to become involved with the arrangements for the children at all. These can be agreed between the parents, and legal intervention is unnecessary. This is by far the best approach for the families and especially the child(ren) if it can be achieved.

Pre & Post nuptial agreements are for the super-rich.

That depends. If you haven’t a penny to your name, and your fiancé is in a similar position, a Pre-nuptial Agreement might not be worth the cost. However, I wouldn’t rule it out. What if you know you are likely to receive a substantial inheritance in the next few years. You probably wouldn’t want a share of that money to go to your spouse if you divorced very soon after receipt. There might be other reasons you need to think about protecting your assets in case of a future separation. Following recent inheritance tax changes, many farming families are choosing to pass the family farm to the next generation earlier than planned. How would they feel if their son or daughter then divorced, and the family farm was at risk of sale?

At the moment, Pre & Post-Nuptial Agreements are not legally binding in England and Wales. They are, however, a very sensible consideration prior to, or even after marriage. In circumstances where they have been properly prepared and executed, without undue duress, they are usually upheld by the Courts. They are the best available protection you can obtain and can be a very sensible way to address potential disputes in a cost-effective manner. In my experience, where pre-nuptial agreements have been prepared and the marriage later breaks down, they not only reduce cost, time and stress for all parties, but they equally ensure that everyone has a clear expectation and understanding of the way forward, smoothing the relationship and facilitating a positive outcome for everyone.

In Part Two (next week), I look at the misconceptions specific to divorce proceedings.

If you would like to contact a member of the Family team, please email [email protected] or [email protected], or call 01884 211020.