Sarah McCarthy, Chartered Legal Executive
Hill Dickinson LLP
Dealing with marriage breakdown is a daunting task. Lots of people will have some words of wisdom to share with you. Often these words of wisdom, while intended to help, will actually lead you up the garden path. Take heed and consider the following matrimonial myths…
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Common law marriage exists
Some people believe that after a lengthy period of cohabitation the relationship attracts the same rights as married couples should the relationship breakdown. This is a myth. Rights of cohabitees on relationship breakdown are very limited and different from those rights of married couples. Property disputes in respect of cohabiting couples are dealt with under the Trusts of Land and Appointment of Trustees Act 1996. Additionally, cohabiting couples do not have the right to make claims in respect of pension and income. Breakdown of a marriage is dealt with under the Matrimonial Causes Act 1973. Under this Act, couples can make claims in respect of income, pension and capital. The court has wide discretion under this Act.
You can divorce easily using the ground of irreconcilable differences
This is a myth. Irreconcilable differences is not a ground for divorce in England and Wales. The only ground for a divorce in England and Wales is that your marriage has irretrievably broken down. This can only be proven to the court by using one of the five facts set out in the Matrimonial Causes Act 1973. These relate to adultery, unreasonable behaviour, desertion, separation for a period exceeding 2 years (provided your spouse consents) or separation for a period exceeding 5 years.
You can have a ‘quickie’ divorceThis is a myth. The process for a divorce is the same whether you act in person, see a solicitor or apply for a divorce online.
‘Sexting’ is proof of adulteryIt is commonly believed that ‘sexting’ can be used to prove adultery. This is a myth. The definition of adultery is: ‘voluntary sexual intercourse between a married person and a person who is not their spouse’. ‘Sexting’ is not sexual intercourse and so is not evidence of adultery. However, ‘sexting’ can be used as evidence of unreasonable behaviour.
Divorce automatically means financial freedom from your ex-spousePeople believe that once you have your decree absolute in divorce no financial claims can be made against you by your former spouse. This is a myth. Until such time as you have a ‘clean break’ from your former spouse you may be subject to claims made by them in respect of income, pension and capital.
The house is in my sole name so it is mineIt is commonly believed that if a house or other assets are held in the sole name of one party they do not form part of the matrimonial pot. This is a myth. All assets are assumed to form part of the matrimonial pot unless the court decides otherwise or this is agreed by the other party.
A fair division of the assets is achieved by a standard calculation This is a myth. Financial matters are resolved on the basis of equality and fairness taking account of the s 25 factors set out in the Matrimonial Causes Act 1973 and also taking account of all of the circumstances of the marriage. Each case is dealt with on the basis of its unique facts.
Women always receive more than men on divorce This is a myth. In some cases women do receive more as they are often the main carer for the children or they have a spousal maintenance entitlement that can in appropriate circumstances be capitalised. Men can also receive more in these circumstances. As mentioned above, financial matters are resolved on the basis of fairness taking account of the s 25 factors set out in the Matrimonial Causes Act 1973 and also taking account of all of the circumstances of the marriage. Each case is dealt with on the basis of its unique facts.
I lose my entitlement to a share of the matrimonial home if I vacate it It is often believed that on vacating the matrimonial home all claims to it are lost. This is a myth. Leaving the matrimonial home has no impact on your ability to make financial claims.
So, as you can see, some of the most common pieces of ‘advice’ people receive are actually not true. When dealing with marital breakdown, it is essential that legal advice is sought at an early stage.