Getting a divorce is widely recognised as being one of the most stressful times in a person’s life. But lawyers say there are many common misconceptions about the process and that it doesn’t need to be difficult if couples access the right advice at the right time.
Emily Finn, a divorce and family law solicitor at national law firm Clarke Willmott LLP, dispels some of the myths surrounding the divorce process.
- We are common law spouses
There is no such thing. The claims that a non-married couple can raise against one another are limited in comparison to those in a marriage and are generally limited to property.
- If I instruct a lawyer I will have to go to court
There are a number of alternative dispute resolution options that a lawyer can explore with you, including mediation, lawyer assisted and child inclusive mediation, collaborative law, arbitration and round table meetings. There is no one size fits all approach.
- There is no point in getting a pre-nup
Although currently in England and Wales, prenuptial agreements are not legally binding, if drafted properly and fairly, these agreements can significantly influence a divorce settlement should the marriage break down. Having an agreement that sets out how finances would be divided on divorce can prevent future disputes and costly litigation.
Particularly for a second (or subsequent) marriage, or where parties have built up significant assets by the time of marriage, or have children by previous relationships, a prenuptial agreement is advised so that spouses are aware of the value of any property that they agree would not be shared in the event of separation or divorce.
- A divorce brings an end to the financial ties between spouses
A divorce will bring a legal end to the marriage, however it does not automatically deal with financial matters. If the financial claims relating to the marriage are not officially terminated with a separate financial order from the court, those financial claims remain live and can be pursued at any point in the future, even if this is decades after the separation.
The severance of financial ties is not something that happens automatically with a divorce. It is vital that you seek legal advice and ensure that financial claims relating to the marriage are terminated.
- There is a standard formula for dividing assets on divorce
This is not the case. Every matter is dealt with on its individual circumstances, having regard to a range of relevant factors, including the needs of the parties and any children of the family.
- If a child says they don’t want to see one parent then that is what the court will order
The court will be concerned with what is in the best interests of a child. Whilst a child’s wishes and feelings can be a consideration of the court, this is by no means the overriding consideration. There is actually a presumption that it is in the best interest of a child to have a full and meaningful relationship with both parents, unless there are serious safeguarding risks.
Emily Finn said: “Divorce doesn’t have to be complicated and unpleasant experience. We help a lot of clients use alternative dispute resolution (ADR) which helps to avoid delays as well as the stress of court proceedings.
“If you have decided on a divorce, separation or civil partnership dissolution accessing advice from a professional early on is the best way to move forward positively. Don’t let myths and pre-conceptions put you off.”