Unravelling Common Myths about Divorce

There were 118,140 divorces in England and Wales in 2012*, which equated to around 13 divorces an hour. Almost half of these occurred in the first 10 years of marriage, most likely between the fourth and eighth year.

Men and women aged 40 to 44 were the most common age group to divorce. 65% of all divorces granted were to the wife and of those, 54% cited the husband’s behaviour as the reason behind the split.

Despite a multitude of beliefs surrounding the thorny issue of divorce, there is actually only one way couples in England and Wales can legally part company. Family lawyers, Russell & Russell Solicitors shed light on some of the most widely held misconceptions about divorce.

*Source: Office of National Statistics

• Quickie Divorces

  Despite the term being readily banded about, they are not possible. Realistically, the quickest process is more likely to take around three months. This is due to the built in time delays within divorce procedure to allow time for parties to change their minds.

• Irreconcilable differences

  There is no such term in English law. In fact, there is only one ground for divorce in England and Wales; ‘irretrievable breakdown of the marriage’. This has to be proved in any one of five ways:

  • Adultery
  • Desertion
  • Unreasonable behaviour
  • Two years separation with consent of the other party
  • Five years separation without consent of the other party

• Common law husband and wife

  There is no such thing. Just because a couple have lived together for 20 years, does not give them the same rights as a married couple. However, it is possible for former cohabitees to begin proceedings to establish a ‘trust’ in the other party’s property or assets, even if they are not named on the property register. Be warned though, this can be a complex area of law and legal advice should be sought.

• The Decree Absolute prevents any further financial claims

  If the matrimonial finances haven’t been resolved by the time the Decree Absolute is issued, both parties remain liable and can make an application to resolve outstanding financial matters. A Final Consent Order ties up any loose ends and can take place at any point after the divorce.

• Children will always live with their mother

  The law doesn’t favour one parent over another. It looks at the circumstances at the time of separation and what is in the best interest of the child. The decision about which parent a child, or children, should live with takes into account the welfare checklist of the Children Act 1989. Essentially, this is a list of seven key criteria that have to be considered every time the courts make a decision in respect of a child. These criteria are:

  • The wishes and feelings of the child concerned
  • The child’s physical, emotional and educational needs
  • The likely effect on the child if circumstances changed as a result of the court’s decision
  • The child’s age, sex, background and any other characteristics which will be relevant to the court’s decision
  • Any harm the child has suffered or may be at risk of suffering
  • Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
  • The powers available to the court in the divorce proceedings 

• If you earn more money, it automatically entitles your ex to a greater share

  The starting point of any financial settlement is an equal division of assets, but all contributions to the marriage, whether financial or otherwise, are taken into consideration. For example, a husband may be the main earner, but the wife may be the chief home maker – both are viewed as valuable contributions to the marriage.

  So, just because Mrs X down the road got Y and Z, doesn't mean that the same outcome will apply in all circumstances. Each case turns on its own facts and a financial settlement between a divorcing couple is based on the following points:

  • The income, earning capacity, property and other financial resources which each party has, or is likely to have in the foreseeable future
  • The financial needs, obligations and responsibilities which each party has or is likely to have in the foreseeable future
  • The standard of living enjoyed by the family before the breakdown of the marriage
  • The age of each party and the duration of the marriage
  • Any physical or mental disability of either party
  • The contributions which each party has made, or is likely in the foreseeable future to make, to the welfare of the family, including any contribution made by looking after the home or caring for the family
  • The conduct of each party, in particular financial misconduct and other serious acts of misconduct such as serious injury by one party to the other party
  • Any benefits the parties may have had during the marriage that they will lose as a result of the divorce proceedings

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