Divorce & Cohabitees Legal advice and Myths – September 2016

It’s a running joke in my family for years that at some point in the Summer holiday my husband, always the designated driver, will get lost resulting in huge arguments whilst going around in circles. Fortunately we are so used to it we can calm down and laugh but for some couples the Summer holidays are make or break for a fragile relationship. The pressures of being together constantly with high expectations for an enjoyable relaxing time together can be too much when faced with the reality of multiple new reasons to argue. The thought that a holiday can rekindle the love for each other is dispelled when hot and sunburnt and realisation dawns that time together brings into stark reality all the reasons the other person drives you crazy and makes you not want to be with them.

When the decision is made that the relationship has failed with no prospect of resolving the issues it is important to take legal advice to dispel any myths and provide reassurance about the future. There are a lot of commonly held myths and views and these can cause confusion.

A divorce can’t be granted on “irretrievable breakdown” alone and just because both parties agree to a divorce doesn’t mean one can proceed immediately. The law requires grounds for divorce and details to be given in support. There is a ground of two years separation “by consent” though most people do not wish to delay which means using the grounds of unreasonable behaviour or adultery instead. Despite what many people think the ground for divorce is not linked to how much is paid or received on the financial settlement and there is little point in wasting monies arguing over who divorce who and on what ground.

What about a “quickie divorce”?

There is also no such thing as a “quickie divorce” in 6 weeks. Once a Decree Nisi is pronounced the Petitioner can apply for the Decree Absolute after 6 weeks and 1 day but the timeframe up to Decree Nisi relies on the processing speed of the court it is lodged within and the speed at which paperwork is replied to. Generally a divorce takes 5-6 months but often there is a gap whilst sorting out the finances before making it final.

“I keep anything in my name” does not hold true as assets built up during the marriage are divided looking at needs as well as contribution. Nor does “The woman always does better than the man” as the guidelines require the court to have regard to all the circumstances of the case and exercise discretion to do justice between the parties.

For cohabitees there is no such thing as the “Common Law” marriage. Whilst many people believe being in a settled but unmarried relationship acquires this status whether a couple has lived together a year, two years or more makes no difference. A separated cohabitee has no right to spousal maintenance, no right to claim on their partner’s pension and no claim on a home owned in the partner’s name unless trust law can be used. This is a specialist area and appropriate advice should be sought.

The position with care and contact with children is the same for married or cohabiting parents with courts looking at the children’s welfare and putting their interests first. There is though no truth in the myth “No child maintenance-No Contact”. Issues of contact and residence are entirely separate to the financial provision to be made for the children. Conversely it is not possible to “buy Contact” by paying Child Support.

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About Ruth Tibbett

Ruth qualified as a Solicitor 25 years ago and her skills are recognised by the UK's leading Family Law Group, Resolution and Ruth has accredited specialist status in financial provision, children law and domestic abuse. Ruth is also trained in Collaborative Law a new approach built upon mutual problem solving. Ruth subscribes to the high standards set by Resolution and acts in a constructive way looking at the whole needs of a family when taking instructions and advising. STEP Certificate in Trusts and Estates (Distinction)

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