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5 common myths and questions about divorce

Posted on 30 March 2022

The 6 April 2022 marks the introduction of "no fault" divorce, removing the requirement to place blame on the other party or wait for a minimum of two years before divorcing. In advance of the much-anticipated changes, Antonia Felix, Partner in Mishcon de Reya’s Family team, examines some popular myths surrounding marriage and divorce.

Can a couple who live together be in a common law marriage?

No.

There is no such concept as a common law marriage, even if you have lived with your partner for years in the same home. Unless you are legally married or in a civil partnership, you do not acquire any rights as a spouse.

Will the change in the law make divorce quicker?

No.

At present, it usually takes several months to obtain a divorce, with the quickest being made final in 3 – 4 months. After the 6th April, once an application is made, there is a "cooling off" period of 20 weeks before an application for the first part of a divorce, a "conditional order" can be made. It will then be another 6 weeks before the divorce can be finalised, meaning some couples will have to wait longer for a divorce under the new regime.

Once the divorce proceedings start, will it always be acrimonious?

No.

The start of any divorce proceedings is likely to be fraught with emotion. There are often disagreements along the way but if a couple are able to communicate (or if not, work with a therapist or third party who can help them) and avoid emotive and personal correspondence, acrimony can be avoided.

With the new no fault divorce regime, parties can either jointly make an application for a divorce or there can be a sole applicant but without the need to prove why the relationship has irretrievably broken down. This takes out the "sting" at the start of the process when one party would historically often have to read what they perceive as inaccurate or false examples of their behaviour, creating acrimony rather than focusing on progressing the matter.

Will the person perceived to be at fault get less money?

No.

Bad conduct will only be taken into account in financial proceedings if it is "obvious and gross". The questions asked are, would it be inequitable for the court to disregard it, and, if so, what effect (if any) should the conduct have on the final order? In reality, it is extremely rare for the court to take conduct into account in considering the financial position of the parties unless it is financial conduct (e.g. where a party has recklessly dissipated assets). Even then, the court usually encourages parties to resolve financial matters by agreement, rather than focusing on past behaviour.

Do children always end up with their mother?

No.  

It is a common misconception that the court will favour mothers. The court's primary concern is the welfare and best interests of any child and that is the starting point for any decision made by a Judge. There is no presumption that a child's welfare is better served by being with their mother, but if one parent has carried out the majority of the childcare prior to the parent's separation, the child is more likely to remain with that parent.

 

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