Family law myths - Dronfield On-line January 2011 

Michaela Heathcote is a partner specialising in matrimonial issues at Taylor&Emmet Solicitors. Michaela deals mainly with matters arising from family breakdowns, particularly those relating to finances and arrangements for children. In this month’s column, she explores some of the most common family law myths.

Regular visitors to this site will recall that earlier in the year I talked about a number of misconceptions,  or family law myths,  that I had come across in my 20 years of practicing family law.  Here are some more:-

The Quicky Divorce

A number of clients come to my office and say that they want a quicky divorce.  They want a divorce like they heard a “friend of a friend” had which only took six weeks.  There is no such thing.  A divorce is a Court process.  Even when both people are in agreement with a divorce the Court procedure still has to be followed.  The process is the same irrespective of whether or not the divorce is based upon grounds of behaviour,  adultery,  separation for a period of two years or more etc.  How long the process takes varies depending on a number of factors such as how busy the Court is,  how quickly the husband and wife deal with the paperwork when they receive it and so on.  On average in the Sheffield County Court proceedings take approximately 4½  – 5½ months.

The idea of getting divorced in six weeks is probably a misunderstanding arising from the fact that there is a mandatory six weeks waiting period between the two stages of the divorce (known as Decree Nisi and Decree Absolute).  That six weeks can be shortened in exceptional circumstances but they are few and far between.

Entitlement to Ex Partner’s Pension

Many clients believe that they are automatically entitled to half of their ex partner’s pension fund.  This isn’t the case.  Couples who have not been married are not entitled to make claims against each other’s pension when their relationship breaks down.  If they have been married they can make a claim in respect of their ex spouses pension.  Whether or not they succeed however will depend on a number of factors and the overall financial circumstances for both the husband and wife.  Sometimes a claim in respect of a pension is only allowed in relation to the pension that has been actually been acquired during the period of the marriage and so any pension that accumulated prior to the parties marriage may be disregarded.  This is not however a hard and fast rule.  Each case is different and it is important to get expert and specialist advice on the subject.

“Pre Nuptial Agreements are not worth the paper they are written on”

Many people believe that Pre Nuptial Agreements,  often called Pre Marital Agreements,  are not worth having in England unlike in the USA where they are common place.  This is not the case.  Whilst it is still true that the English Courts are not bound by a Pre Marital Agreement and the Judges retain the right to make whatever order they think it right and fair in all the circumstances,  a Pre Nuptial Agreement can be very significant and frequently will determine the outcome of a dispute between divorcing couples.   There has recently been the very high profile and glamorous case of Radmacher and Granatino.  In October this year the Supreme Court ordered that the multi millionairess Karin Radmacher could rely upon a Pre Marital Agreement entered into with her ex husband and hang on to her fortunes.  It would seem now that unless a Pre Nuptial Agreement is extremely unfair and unreasonable in it’s terms then it is likely to be upheld by a Court.

Even before this decision I advised clients that it was better to have an agreement than not as at least it showed how the parties intended to share their assets in the event that the marriage broke down.

Some areas of family law can be complex and it is important to get sympathetic but practical advice.  Either myself or any of my colleagues would be happy to answer your questions.  For more information please call 0114 218 4000 or visit www.tayloremmet.co.uk.