Key takeaways
Common law marriage doesn’t exist in law
Legal rights only apply through marriage or civil partnership.
No-fault divorce still takes six months
Mandatory reflection periods prevent ‘quickie’ divorces.
Financial ties remain after divorce without order
Separate court order needed to fully sever finances.
Navigating the breakdown of a marriage is often one of the most difficult things any couple will have to face. Understandably, many will turn to friends and family for support and guidance through such a significant life event. Whilst the input of loved ones can be invaluable, it is important that the right advice and direction is given to secure the best possible outcome for all when looking ahead to the future. With that in mind, we debunk some of the most common matrimonial myths….
Common law marriage exists
It doesn’t!
No matter how long an unmarried couple have been together, or indeed lived together, there is no such thing as common law marriage. Only by marrying, or forming a civil partnership, can a couple acquire the associated rights and responsibilities. The legal relationship between cohabitees is different and much more limited than spouses / civil partners.
Property disputes between cohabitees are dealt with under the Trusts of Land and Appointment of Trustees Act 1996. Additionally, cohabiting couples have no claims arising in relation to any other capital, pension and income.
Conversely, spouses and civil partners have claims against one another for capital, pension and potential claims for income, and the Court has a much wider discretion in respect of those claims.
‘Quickie’ divorces
They don’t exist!
On 06 April 2022 the law in England and Wales changed and brought into force a ‘no fault’ system. As part of that new process a 20 week ‘period of reflection’ became mandatory between making the application for divorce and applying for the Conditional Order (previously known as Decree Nisi). There is then a further period of six weeks and one day which must elapse between the Conditional Order stage and the application for a Final Order (previously the Decree Absolute) before the marriage can be dissolved – meaning the process takes an absolute minimum of 26 weeks.
Some marriages are over in a matter of months, or even days!
Not legally!
You must be married for a minimum of one year prior to making an application for divorce.
Someone is to blame
The divorce process is no fault!
The change in law on 06 April 2022 removed entirely the ability to attribute blame to one party or another. The sole reason for divorce in England and Wales is that the marriage has broken down irretrievably and cannot be saved. There is no need (or indeed ability) to explain why or how such a breakdown has occurred, only that it sadly has.
Divorce equals financial freedom
Not true!
In addition to a Final Order in the divorce process dissolving the marriage, the parties will need a separate Financial Remedy Order to ensure they sever the financial ties that exist between them by virtue of the marriage. Ideally the parties will want to achieve a “clean break” financial order, albeit this is not always possible. Without a separate Financial Remedy Order financial claims arising from the marriage remain open and this means (save in very specific circumstances) either party can at any time in the future bring financial claims against the order.
“What’s mine is mine”
Not always true!
Whilst one party might have been particularly careful to keep assets in their sole name, that does not automatically mean those assets will be ringfenced and not shared with the other party to the marriage. The starting point in relation to the division of capital is that all assets (in both joint and sole names) fall into the matrimonial pot to be considered available for sharing between the parties. It is only in very specific circumstances that the Court will be persuaded to entirely deny access to an asset by one party and it is important to know that meeting “needs” trumps all else.
It is easy to see how, despite best intentions, myths can be spread and relied upon. If you are experiencing a relationship breakdown, it is imperative that you seek prompt advice from a specialist family solicitor who can be sure to guide you along the difficult road of separation and ensure the best outcome for you and your family.