The Taylor&Emmet Blog

Marital Misconceptions

The myths surrounding divorce are multifarious and potentially very damaging to any prospect of going your separate ways amicably and with respect.

Knowing your rights, whether you are married, in a civil partnership or simply living together, is the key to avoiding misunderstandings, so I thought I’d set straight the record straight and address some of the most frequently quoted fallacies.

I have legal rights as a ‘common law’ husband or wife.

Many people who have been living together for several years believe they have the same range of financial claims open to them as married couples. This is not the case.

No matter how long you have been cohabiting, you do not have the right to a proportion of your partner’s pension, which could be potentially very valuable, or an automatic stake in the family home, if it is owned in the other party’s sole name. If you haven’t made a direct contribution to the purchase or the mortgage payments, it can be very difficult to establish an interest in the property, even if you have lived there for years.

A spouse can pursue a claim on the matrimonial home, even if their name is not on the title deeds. Cohabitees, however, have to rely on a collection of outdated legal doctrines, offering none of the principals of fairness courts seek to follow when married couples separate.

I will be entitled to stay in the family home as I care for our children.

Clients often believe that because they are the main caregiver, they are entitled to stay in the marital home until the youngest child reaches 16 or 18. There is no such law.

Each case is treated differently, depending on the facts. Ideally, courts like to preserve a home for children, but it has to be affordable and produce the right result for both parties.

If there is sufficient equity in the property, if released by its sale, to rehouse both parties, the courts may well be reluctant to preserve it, if your partner could not recover their equity or be removed from the mortgage.

It is important, if you are considering divorce, to take expert advice, so you understand the full range of possible outcomes.

We can get divorced based on irreconcilable differences.

Simply stating that you have irreconcilable differences would not achieve a divorce.

To bring a marriage to an end officially, you have to satisfy the court that it has broken down irretrievably, based on one of the following criteria:

  1. The other person has committed adultery
  2. The other person has behaved in a way you find unreasonable
  3. You have been deserted for a period of at least two years
  4. You have been separated for two years and you both agree to divorce
  5. You have been separated for five years (in which case, the other person’s consent is not needed).

As the children’s mother, I call the shots!

Many mothers think they have the upper hand when it comes to making arrangements for children. Again, this is not the case.

Married parents have equal rights and responsibilities where children are concerned. Neither party is legally stronger than the other or able to dictate what the childcare arrangements should be. Unmarried fathers have the same rights as mothers if they are named on the birth certificate or have acquired parental responsibility by court order or agreement.

If you cannot reach a mutually acceptable arrangement with the help of solicitors or a family mediator, an application to the court will be necessary. A judge will then determine what happens to your children, for example, who they live with and where, how often they see the other parent, which school they attend, which religion they will be raised under, etc.

Neither parent is able to call the shots. It is, therefore, important to know your rights, whether you are married or cohabiting.

To find out more about any of the issues raised here, don’t hesitate to contact me on (0114) 218 4000 or email info@tayloremmet.co.uk.

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