Divorce and separation myths

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Following on from the recent story about there being a sea monster in the Thames, which is being compared to the Loch Ness Monster, I thought it would be prudent to take a look at certain 'myths' that swim through the waters of family law.

We have irreconcilable differences

On a number of occasions, I have been asked by clients whether it is possible for a divorce to be progressed on the basis of irreconcilable differences.  Unfortunately, whilst this is an option if you were getting divorced in the USA, this is not currently a valid divorce ground under English Law.  However, the No Fault Divorce Bill 2015-2016 is currently with Parliament and scheduled for a second reading on 22 April 2016. Therefore, this situation may very well change at some point in the future.

It's not adultery, we were already separated

Clients often think that, provided they are separated from their spouses, if they start a new relationship this will not be considered as adulterous. However, until such time as the marriage is formally dissolved by the Court, if one party enters into a sexual relationship with someone else of the opposite sex, then they will have committed adultery and a divorce could be progressed on this basis.

If I issue the Divorce Petition, then I will get a better settlement

Again, this is not correct. In general terms, irrespective of who issues the petition and the grounds that are used; this will not have a bearing on either the arrangements for any children or the financial aspects of the case. Both of these issues will be considered by the Court on a separate basis and will be determined by the facts of the case and not what is in the divorce petition.

I want a quickie divorce

Despite what is stated in the press, there is no such thing as a 'quickie divorce'. The legal process is the same for anyone who gets divorced in England irrespective of their status or the ground for divorce relied upon. Read our detailed guide to the divorce process.

I have a claim because we are Common Law Husband and Wife

Whilst it is often through that, if a cohabiting couple live together long enough, they will generate claims against each other. However, this is not correct unless they subsequently get married or enter into a civil partnership. Whilst a number of couples do not feel the need to take this step and this is completely their choice, it will mean that, in the absence of any cohabitation agreement being drawn up between them, any future disputes will be dealt with on a strict civil basis by the Court as opposed to wider discretion the Court is provided when dealing with a married couple. Read more detail here.

Getting Parental Responsibility will give me rights over the child

Many separating couples fear a relationship breakdown with a child. As such, it is felt that obtaining Parental Responsibility will strengthen their position in some way, but this is not the case.

Whilst mothers automatically get Parental Responsibility, since 2003 if the father is named on the child's birth certificate, he will also automatically acquire this. Even if a father's name is not on the birth certificate, if the parents subsequently marry, the Father will acquire Parental Responsibility as a result.

It is important to note that Parental Responsibility does not set up any rights over the child; it creates an obligation for those named to ensure the wellbeing of the child is catered for on a day to day basis. As such, any practical arrangements for the child (such as which parent they will live with and the time they spend with the non-resident parent) will still have to be agreed by the parents or as determined by the Court. This will be based purely on what is in the child's best interests irrespective of whether Parental Responsibility is provided to a party.

How we can help

Should you need advice with any aspect of your divorce or separation, please contact me or another member of the family team. We are pleased to offer a 50% discount to new clients for an initial consultation in relation to divorce proceedings.