Having practiced in Family Law for over a decade I have found that there are a number of false beliefs that people say to me time and time again, so in this article I am going to clear up some of the most popular ‘myths’ surrounding separation and divorce.
“If I move out of the family home, I will lose my rights”
The right to attend and occupy a property is governed by the Land Registry title. Whether married or not, if a property is held in joint names, then, (subject to any court orders) both parties are free to come and go from the property without restriction.
If a property is held in one party’s sole name, a spouse would be entitled to occupy the address under their matrimonial home rights, and enter a restriction on the Land Registry title. For unmarried couples, it is possible to obtain an Occupation Order for an ex-partner.
“We lived together as partners, so that’s the same as being married”
No. Cohabitation does not give a couple the same rights as marriage, there is no such thing as ‘a common law spouse’; in England and Wales and I have stunned many clients who learn, after their relationships have broken down, that they are going to have to fight for the return of any investment or contribution made to a partner’s property.
If two people are planning to move in together, it is important to consider a Cohabitation Agreement. This will record the intention for the property and any contributions now, in the future and in the event of a relationship breakdown. Otherwise, it will be left to chance and the discretion of a Judge, who will have to try and decide what parties intended when they decided to live together.
“What we decided for the children now, won’t dictate the future”
One criteria considered when determining arrangements for children is ‘the impact of any change in circumstances.’ Temporary arrangements can become a routine and considered the status quo that becomes the starting point for the consideration of a Court.
“Assets split in divorce are those gained during a marriage or in joint names”
Courts consider everything held in joint or sole names of either party, including those accumulated before marriage, and any resources available to them, such as trust assets.
If someone is entering marriage with assets that they want to protect, then it is important to use a Pre-Nuptial Agreement. This will record what parties are bringing into the marriage, and what should be ‘ring-fenced’ to be kept by one party in the event of a divorce or separation.
“Pre-Nups aren’t legally binding”
In 2010, the Supreme Court gave a ground-breaking ruling in the case of Radmacher v Granatino that said if parties enter into any agreement freely, knowing and understanding its implications, it is legally binding. This was confirmed in later cases in 2012 and 2018, so it is now recognised that Pre and Post-Nuptial Agreements are legally recognised.
“What happened to my friend will be the same for me”
There are a number of criteria that are written in law that the court are required to consider and apply when determining a case. Every person and relationship is different and their case should be treated as such - just one factor can bring entirely different outcome.
“I’ll get a solicitor if things go wrong”
Getting independent legal advice early on means you will understand what you are entitled to, know your options and will be fully prepared to sign the documents that will dictate your future because, once you’ve signed, it is unlikely anything can be done to change the situation after.