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Busting myths this "Divorce Day"

Posted on 8 January 2024

The first working Monday of a new year is regarded by many as being "Divorce Day", when family lawyers supposedly receive more calls from potential new clients than at any other time of the year. It is said that one of the reasons for this is due to unhappy spouses trying to maintain an enjoyable Christmas for each other and their children, but subsequently coming to the view that their relationship is over. Kate Clark, Head of the Mishcon Family Team, looks at some common myths surrounding divorce in England and Wales.

Myth 1: It's possible to get a "quickie" divorce

There isn't any such thing as a "quickie" divorce. The process of obtaining a divorce takes several months and since the introduction of "no fault" divorce in April 2022, it will usually be a minimum of 6 months from application to final divorce order. The part that is often referred to in media coverage of "quickie" divorces is where a Judge makes the divorce order – this aspect often takes only a few minutes where the paperwork is in order, as the necessary procedures and confirmations by each party have been carried out before the Judge considers the matter. It's also important to note that the making of a divorce order does not itself deal with related matters, such as the division of finances, or arrangements for children.

Myth 2: If one spouse is to blame for the divorce, they will be penalised when dealing with financial matters on divorce

Where a court is considering the division of assets on divorce, it does not ordinarily consider who is to blame for the breakdown of the marriage. The court will determine the extent of the assets and divide them between the parties usually based on sharing matrimonial assets and meeting the needs of the spouses and any children. While conduct is very occasionally taken into account, this is usually only where it has direct financial consequences, such as where one party has purposefully and significantly reduced the available assets.

Myth 3: The children will always stay with their mother after a divorce

When considering questions as to the upbringing of a child, the child's welfare is the court's paramount consideration. In many families, the children's mother has been their primary carer throughout the marriage and where this is the case, often the most suitable outcome for the children is for this to continue. However, where the child's father has been significantly involved in their day-to-day care (or is the primary carer), then continuing this arrangement is frequently also the best option for the children's future. The reality, however, is that in most cases, the children will go from living in one household to spending time between two homes, so whatever arrangements are put in place need to be practically workable for the children (and their parents).

Myth 4: You will get more on divorce if you maintain an extreme position

Many people believe that if they start from an extreme negotiating position, they are more likely to obtain a positive outcome. Unfortunately, in most cases, where parties adopt unreasonable positions, they are more likely to end up litigating, resulting in greater costs and greater delay in achieving a resolution. Where parties are able to reach an agreement through mediation, negotiation or other form of Non Court Dispute Resolution they are usually better able to achieve an outcome tailored to the needs of their family, saving costs and time in the process.

Myth 5: Divorce Day itself

"Divorce Day" has traditionally been said to occur on the first working Monday of the New Year, when unhappy spouses, brought to the brink by forced time together over Christmas, contact a divorce lawyer. This year, some commentators have suggested that Divorce Day is in fact the 2nd of January, or the 3rd. The reality is that there is no single "Divorce Day", and some of the tropes surrounding the reasons for people contacting lawyers at the start of the New Year (such as wanting a "fresh start" for the New Year) risk trivialising how difficult most people find coming to the conclusion that a marriage is over. Divorce is rarely something that people embark upon lightly and is a significant life decision, not simply a consequence of an unhappy Christmas. Holidays spent together can emphasise the difficulties in a marriage, but in other instances can help repair them. There are a myriad of reasons why relationships break down and it is important, once a decision is made to divorce, to focus on engaging in the process in as amicable a manner as is possible, particularly where the spouses will continue to be parents to their children.

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