Dispelling the Myths and Misconceptions of Family Law – Part Two

In Part One of these articles, I considered generic misconceptions that I have experienced as a family lawyer. In Part Two, I look at those specific to divorce proceedings, and, consequently, the more common misunderstandings which I have encountered.

Once again, these misunderstandings can be dangerous. They cause unnecessary anxiety and unrealistic expectations. Taking advice from a family lawyer early on in the process can be invaluable in avoiding those fears. The value of understanding how your individual circumstances are likely to be handled is priceless, and will almost certainly save you time, money and stress.

Divorce is always contentious.

Absolutely not. Undoubtedly, some divorces are contentious, acrimonious and extremely unpleasant, but thankfully these are in the minority. A good lawyer will encourage you at every stage to maintain an amicable relationship with your former spouse. The divorce and financial remedy system in England and Wales is intentionally designed to encourage opportunities to negotiate settlement and consider alternative forms of resolution. My personal approach is always to promote mediation where suitable, and remind my clients that taking a hostile approach is only likely to increase costs and damage relationships further. If children are involved, that is especially to be avoided.

In April 2022, the legislation which governs divorce in England and Wales changed and divorce is now conducted on a no-fault basis, as opposed to previous legislation which required one party to blame the other for the breakdown in the relationship, or wait a minimum of two years before they could divorce by consent. The new system allows parties to divorce without blame and thus without the need to increase tensions which may already be running high.

Divorce is expensive.

There is no reason why divorce should be expensive. The divorce itself incurs a Court fee (currently £612), and if the work is done by a lawyer, this should be limited. At Everys, we offer a fixed fee of £500 plus VAT to deal with a divorce plus the Court fee.

Costs can increase when lawyers are involved to assist in reaching a financial agreement, but if the parties are able to remain on positive terms and negotiate fairly, with the benefit of good legal advice, there is no reason why those costs should be prohibitive. In fact, in the overall picture of a settlement negotiated on amicable terms, the costs are likely to be a very small proportion. Costs are more likely to spiral where parties fail to take legal advice and so have unrealistic expectations, or negotiate with animosity, increasing hostility and resulting in implacable positions which have to be determined by a Judge.

Assets will be split 50/50.

This can be true, and it is the starting point for determining financial settlement on divorce. However, there are many other factors which need to be taken into consideration, and which often only experience and sound legal advice can help you understand. There is no standard formula for determining financial remedy and so you would be wise to take advice before reaching any agreement with your ex-partner.

Once divorce has been finalised, financial claims fall away.

A dangerously incorrect assumption which has resulted in some fascinating cases over the years. Whilst lawyers will normally advise that a final order of divorce should not be finalised until a financial settlement has been reached, and approved by the Court, this is not because financial claims cease at that point. In fact, most financial claims remain unless a Court order is obtained which provides for how the finances should be addressed.

You may think that some twenty years after your divorce was completed, your ex-partner could never really be able to claim against your fortune? Think again. The Court made a clear determination in Wyatt v Vince. Exceptional circumstances maybe, but a word of warning. At the time of divorce both parties had extremely limited assets. Fast-forward just over 20 years and Mrs Wyatt’s financial circumstances were largely unchanged, Mr Vince however had amassed a fortune of just over £57million. The Court determined that Mrs Wyatt should receive a lump sum payment of approximately £300,000. A drop in the ocean to Mr Vince’s fortune perhaps, but, I’m sure, a bitter pill to swallow after so many years apart.

The Court will financially punish the ‘wrong doer’.

So often clients assume that because it was their partner who decided to end the marriage, whether by having an affair or simply because they behaved in such a way that the marriage became intolerable, the Courts will take a more favourable approach towards them, offering some kind of financial compensation for the bad behaviour. Not so. The behaviour of the parties rarely has any impact on the financial settlement. The ‘conduct’ of the parties is a factor that the Courts can consider in determining financial settlement, but it is a rare and complex argument. Even where one party has attempted to murder the other, this would not be classed as ‘conduct’. There needs to be some financial impact due to their behaviour in order to succeed.

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