Couples divorcing often have a number of misconceptions about the legal process of ending a marriage. Jacqueline Major 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:
- 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.
Premarital agreements aren't legally binding
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's 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 partner's 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.
- Read our guide to what happens to my pension after divorce and top financial tips when you're getting divorced. Plus best divorce and separation advice.
- For more money-saving tips, pick up the latest copy of Yours magazine