5 Common Myths of Divorce
There are many myths surrounding the divorce process. In this article we will try and unravel some of them.
"We can’t get divorced because neither of us has have been unreasonable and we have not been separated for 2 years"
The first hurdle to overcome is the fact of the divorce. There is only one ground for divorce in England and Wales, which is the irretrievable breakdown of the marriage. The person filing the petition has to demonstrate this with a ‘fact’. The most common fact is unreasonable behaviour.
In a case where the marriage has ended and neither person has committed adultery, couples can either wait for two years (and rely on the fact of two years separation with both parties’ consent) or they can rely on the other party’s unreasonable behaviour. It is a common misconception that without adultery the only option is to wait two years - this is incorrect and may not be in your best interests.
So what is unreasonable behaviour? Most people are surprised to learn that this does not mean extreme behaviour on behalf of one party to the marriage. The Judge considering your divorce petition is looking at why you personally cannot remain married to your spouse and then considering objectively whether that is reasonable.
The media has recently reported on a case where the Judge refused to allow the divorce to proceed based on the wife’s unreasonable behaviour allegations. This has caused concern, however, in this case is that the divorce was defended and therefore the Judge was required to consider the evidence before him. Thousands of divorce petitions pass through the Courts without any issue being raised. When filing an unreasonable behaviour petition, we help our clients identify 4-5 examples of the other party’s behaviour which causes them to feel the marriage has broken down and they can no longer remain married.
"It is ok to agree a date of separation for the purposes of the divorce proceedings"
"Neither of us want to point the finger, so we will just make up a date of separation"; what are the risks? There are significant risks to this approach. Whilst many people set out with good intentions to resolve matters amicably, and a number do, there are cases where unfortunately the resolution of financial matters causes tensions further down the line. The date of separation can become key when considering issues such as the date an inheritance was received; the date a loan was taken out or the date a business took an upwards or a downwards turn. Whilst it may seem like the easy option in the first instance, such an approach is full of pitfalls.
It is also worth noting that the divorce petition is accompanied by a Statement of Truth. This is a statement by the Petitioner that the information within the form is true to the best of their knowledge and belief. Providing a false statement of truth to the Court is contempt of court and parties can be punished by imprisonment, fines or with assets being seized.
"Naming the third party in adultery proceedings is necessary"
Proving adultery can be very difficult unless it is admitted. In most cases where legal advice is sought, the person filing the petition will opt for unreasonable behaviour, even when adultery has occurred, as this does not require an admission of committing adultery by the Respondent, which can sometimes be difficult to obtain or providing the adultery.
In cases of adultery it has been recognised for some time that the Petitioner should avoid naming the Co-Respondent. This only serves to increase animosity between the parties and to bring a third person into the proceedings, can causes unnecessary delay.
"If I am the Respondent in the divorce, the Judge will award me less in financial remedy proceedings"
"If I take the blame within the divorce petition, I will be penalised in a financial settlement". This is an extremely common misconception and an understandable concern when thinking about commencing the divorce process. However, the fact relied on within the proceedings rarely impacts upon the terms of the financial settlement. Parties are not awarded less for having committed adultery or for being the Respondent to unreasonable behaviour allegations save in very rare instances where the behaviour is severe, e.g. attempted murder.
"Instructing a Solicitor only increases costs and causes unnecessary arguments"
The final and most common myth is that Solicitors simply want to increase their client’s costs. This is not true. Most lawyers prefer amicable clients. It makes the process easier for both parties and saves unnecessary stress for all involved. Most family practitioners become family lawyers due to their passion to help others and getting a client to the end of proceedings as smoothly, calmly and with as few hiccups as possible is the ultimate goal. At Jackson West our matrimonial team are members of Resolution and as such are committed to resolving cases constructively, putting the needs of any children of the family first.
For more information on divorce, please call:
01788 435060 (Rugby)
01789 204020 (Stratford Upon Avon)
Alexia Mills / Jackson West - February 2018