Common family law myths

1.  I will receive more of the assets because my spouse was unfaithful

The court will not usually take in to account the reasons why a marriage has broken down when considering financial settlement.  It will only do so in exceptional cases where someone’s conduct has a significant financial impact for example repeat gambling causing substantial financial loss to the family.

2.  Decree Nisi marks the end of our marriage

Decree Nisi is the half-way stage only.  It is Decree Absolute which marks the end of a marriage.

3.  My spouse and I are divorced therefore he/she cannot make a financial claim in relation to our marriage

The divorce process does not include resolving financial aspects.  Financial matters are dealt with by a separate process and a final agreement is reflected in a consent order which is a binding court order.  This provides certainty for the future.  Financial matters may be resolved by agreement between the parties, by mediation, through solicitors or through a court process.

4. We are divorced and our house has been sold and we do not need to take any further steps

It is important that a consent order is agreed and sealed by the court as a binding court order. There are often other assets such as savings, bank accounts, investments, pensions and sometimes other properties or a family business which need to be considered and an agreement reached.  Pension sharing can only take place following a sealed court order.

5. My spouse is not entitled to a share of my pension

All assets are taken in to account when considering financial settlement including pensions.  Pensions are usually dealt with separately to other assets as they are a different type of asset.  Different schemes have different characteristics and a pension expert may be required to prepare a report on pension sharing to assist the parties.

6. My spouse did not work during our marriage and he/she is not entitled to share my money

Marriage is a partnership and the court recognises that people make contributions in different ways.  For example, a mother or house-wife is equally entitled to share in the fruits of their marriage as her husband who may have focused on his career or growing his business for the family and vice versa.

7. I live with my new partner, but this will not affect my previous marriage financial settlement

Co-habitation with a new partner may impact on financial settlement in relation to a previous marriage because housing needs may already be met and monthly household expenditure is likely to be shared with a new partner. 

8. My partner and I have the same rights as a married couple

Co-habitees do not have the same rights as a married couple.  If the house is in one party’s name only and the other party has not made a capital contribution, they may have no claim to an interest in the property or right to continue to live there.  Whilst joint assets are usually divided equally, a co-habitee is not entitled to share in assets in their partner’s sole name such as savings, investments, other properties, pensions or business assets.  They are not entitled to claim spousal maintenance and may not beprovided for upon their partner’s death.  A claim may be made under Schedule 1 of the children Act for provision for their children only.

9. If the children live with me, I am able to make all decisions relating to them

If the children’s father is named on their birth certificate or their mother later marries their father, both parents will have equal parental responsibility for the children.  Important decisions such as choice of nursery and school, planned medical/dental treatment and immunisation must be agreed between them.  Both parents have parental responsibility even if one parent does not spend time with the children.

10.  The court will order my spouse to pay child maintenance

Child maintenance is dealt with by the CMS (which replaced the CSA) and a standard formula is applied. The court will only deal with child maintenance in those cases where the parent the children do not live with earns more than £3,000 gross per week and a maximum assessment has been made by the CMS.

For further advice please contact Sue Leach on 01562 512428 or sleach@thursfields.co.uk