Family law myths - Dronfield On-line January 2010

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.

In my 20 years practicing family law, I have come to realise there are a number of misconceptions – or as I prefer to call them, family law myths – that actually influence people’s perceptions of their rights and responsibilities in a relationship. There are too many to cover in detail, but the following are the most common.

The common law wife

Many people believe that after living with someone for a number of years without marrying them, they are granted the same legal rights as a spouse. This is not the case!

There is no such thing as a ‘common law wife’ and significant differences remain between the rights of separating spouses and cohabiting couples. For example, if a couple lives together in a house owned by one of the parties, the other has no automatic right to make a claim on the property. They have to establish a legal interest in the house, relying on a very complex area of the law. This is the case even if the couple has lived together for a long time, whereas if a married couple separates, it does not matter who owns the house.

Another significant difference relates to maintenance. When children are involved, child payments are expected irrespective of marital status, however, a person who has been married can, in certain circumstances, pursue a regular income for themselves. A cohabiting couple can make no such claim, no matter how different their earnings, or how long they have lived together.

The same applies to pensions. A separating spouse has a right to consider claiming against their partner’s pension fund, but this is not the case for unmarried couples. There is ongoing debate about changing the law to give cohabiting couples similar rights to married ones, but for now, the differences remain.

Divorces based on allegations of unreasonable behaviour or adultery can be commenced at any time – you do not have to wait two years as many people believe. It is even possible to begin proceedings whilst living under the same roof, provided certain conditions are met.

Adultery

Clients often believe that if they are blamed for the breakdown of a marriage, i.e. the divorce is based on their behaviour or adultery, they will be punished financially.

Apart from extreme cases, this is quite simply not true. Generally, the reason for the marriage breakdown has no bearing on the financial settlement. Exceptions to this include extreme situations such as cases where one party has fraudulently signed the other’s name to remortgage the house and has lost the money gambling. However, cases like this are rare.

These are perhaps the most common misconceptions I have come across, but there are many others. Well-meaning friends and neighbours frequently offer advice that is inaccurate or out of date, which is why there is no substitute for a quick telephone call or an informal meeting with a solicitor.

My colleagues and I are always happy to provide the facts that will help you make an informed decision about your future. For more information, telephone (0114) 218 4000 or visit www.tayloremmet.co.uk