Learn more about our cookies policy here.
Meredith Thompson examines some common myths in family law, including the "quickie divorce", the common law wife and the age old assumption that the mother always gets the children.
There is no such thing, despite frequent media references to it. There is a set procedure to be followed in all divorce cases. If a divorce is undefended, then it goes through under what is known as “the special procedure”. In reality, this is the normal procedure. Although in exceptional circumstances it is possible to shorten the 6 week period between the two formal stages of the divorce decree (nisi and absolute) in the vast majority of cases even the quickest undefended divorce will take between four and six months.
Where one of the couple does not agree that the marriage has broken down, or says it has broken down but wishes to put their own reasons forward, the divorce becomes defended. In this case it will eventually go to trial for a judge to decide: (a) whether the marriage has broken down, and (b) what the reason is for that. Defended divorces are rare.
The principle of being a common law wife (or husband) was abolished in 1753 in the reign of King George II. Despite this, a myth seems to exist that people who live together outside marriage as a couple (cohabitants) gain rights after a certain period of time. Often this is said to be six months, two years, five years or sometimes seven years. This is simply not the case. There are no quasi-matrimonial rights given to cohabitants. Cohabitants are not entitled to maintenance from their ex if the relationship breaks down or to a cash payment or to a pension share, unlike married couples. If they wish to seek a financial settlement they have to fall back on complex property and trust laws.
Family lawyers often see people who want to get divorced on the basis of “irreconcilable differences” or “mental cruelty”. The only ground for divorce in England and Wales is that the marriage has irretrievably broken down. To prove this a divorce petition has to cite one of five “facts”. Those are adultery, unreasonable behaviour, desertion, two years’ separation where both parties consent to a divorce, or five years’ separation.
Unless the behaviour of one, or both of the couple is really extreme, it will not affect the financial outcome. For example, the fact that one has had an affair will not affect the finances, neither will the fact that one may have been manipulative or a bully, or even violent, unless such behaviour has had a direct financial impact. It is an oft-used adage that the behaviour has to be on a par with attempted murder for a court to consider it when looking at finances.
The very clear thinking these days is that children should have a good and loving relationship, and to spend time, with both parents. Shared care arrangements are now common. The majority of solicitors will encourage parents to sit down either together, perhaps with the help of a mediator or family therapist, to work out how to parent their children successfully, and fairly, when they are separated. It is no longer the case that the fathers are sidelined. Courts have new powers to enforce contact orders if one parent does not comply with the order.
We used to speak in terms of one parent having “custody” of the children and the other having “access” to them. Since 1991, however, the law has been that married parents both have “parental responsibility” for children rather than rights over them. Unmarried fathers who are on the birth certificate or who enter into an agreement, also have parental responsibility. We also now have “residence” to state with which parent (and sometimes in can be both parents) the children will live, and “contact” to describe the time with the other parent. Labels can be unhelpful and can stigmatise one or other parent so it is better to speak in terms of the time the children will be with each parent, and where they will be based when they are with each parent.
Family Law is changing. The courts may well not be the best place to sort out future arrangements for an individual family. Many family lawyers now offer collaborative law, which is a process led by the concerns and objectives of the couple, assisted by their lawyers, and specifically avoiding the court. Mediation is where a couple try to reach agreement with the aid of a trained third party mediator. Many lawyers have trained as mediators. A family lawyer should be seen as part of the team who assist a family in moving from the position of the adults being together, to a state of cooperative separation and future co-parenting.