Family Law

Getting divorced in January is a common misconception and there are lots of other myths when it comes to divorce. So what are the top 5 divorce myths and is there any truth in them? Jennifer Wilkie, an accredited Family Law specialist and mediator at Brodies, looks at the details.

Myth 1 – “Everybody gets divorced in January”

The top divorce myth is that everybody gets divorced in January – this is simply not true. The patterns of divorce in Scotland are not something which we can put our finger on. Whilst we can look at statistics which are issued by the Court in terms of the number of divorce applications, most divorces don’t start off with an application for divorce in Scotland. In most cases, matters concerning a division of the finances and care arrangements for the children are sorted out first and an application for divorce comes a year or two years after separation and by agreement.

Myth 2 – “The divorce is their fault so they can pay”

Scotland operates on the basis of a no fault divorce system. If somebody has caused the divorce it doesn’t necessarily mean they will have to “pay” more in financial terms to sort out the finances. What can happen is that one person may look to purposefully delay matters either because they don’t want to be divorced or it is not in their interests (financial or otherwise) to be divorced. The longer things are drawn out the more expense is likely to be spent on legal costs on both sides. Both parties instructing their lawyer to resolve matters as constructively as possible will help to mitigate the legal costs incurred on both sides.

Myth 3 – “We just split everything in half”

It is a common misconception that in every divorce case, you simply split the assets down the middle. A fair division of the matrimonial property often, but not always, means equal. Establishing what is or is not matrimonial property can also prove tricky. People regularly forget to include significant assets such as pensions as part of a division of their finances. Debts also need to be taken into account. There are also other considerations such as when property was acquired (pre or post marriage), how assets were funded (gifted or inherited) and any economic disadvantage or advantage sustained or gained by either party. In the case of Scots Law, a couple can decide how they wish to resolve matters in a financial sense and can enter a private agreement to reflect matters. But it is worthwhile knowing in the first place what the law says so that you can place things in context.

Myth 4 – “If we go to lawyers it will just be expensive”

It would be right to say that instructing a lawyer does mean that you are going to have to incur some costs. A lot of couples can gain invaluable initial advice from a lawyer and then try to resolve things between themselves directly or through mediation. It makes sense to take initial advice first so that you know what you need to do further down the line and so that you understand the divorce process overall – it is a lot easier to start off discussions from an informed basis rather than have to unpick where you have got to at a later stage.

Myth 5 – “Instructing a lawyer means going to Court”

One person telling the other that they have “been to see a lawyer” doesn’t automatically mean that a legal process has begun. It is a common misconception that by instructing a lawyer you will find yourself the next day in Court. Most good family lawyers will advise you against going to Court knowing the uncertainty, risk and costs that are involved and will guide you along a much more favourable route of trying to resolve matters constructively.