There are many myths around divorce, but how many of them are true – we’ve taken some of the most common ones below and explained the real situation.
Assets are always split 50/50 on divorce.
Whilst the starting point in English matrimonial law is that the assets will be split 50/50 between the parties, there are many factors that the court will take into consideration before deciding what the final split of the assets will be. The Court has discretion on a case-by-case basis and aims to divide assets in such a way that is fair to both parties, as well as ensuring that the housing and income needs of both parties is met.
There is an automatic right for the children to live with the mother on divorce.
There is no automatic right that the children live with the mother upon separation. It is very much up to the parents to decide who the children will live with and how much time the children will spend with the other parent. For most parents going through a divorce, the welfare of the children is paramount and in fact, studies show that children do better when they spend time with both parents. The Court is also bound to follow the principle of what is in the child’s best interest.
In situations where parents are unable to amicably decide on an arrangement for the children, you can apply for the Court to grant a Child Arrangements Order to decide who the child lives with, who the child spends time with and when they spend time with this person. In granting a Child Arrangements Order, the Court will consider a variety of factors – the welfare and wishes of the child or children will be paramount.
It is impossible to remain amicable upon divorce.
This is simply not true. When we talk about an amicable divorce, we mean a divorce that avoids conflict and long, stressful court proceedings. The introduction of ‘no fault divorce’ has helped massively to reduce tensions between parties during proceedings as it is now possible to apply for divorce simply on the ground that the marriage has broken down irretrievably. It is now even possible for the parties to apply for divorce together, as joint applicants.
It is very much possible for both aspects of divorce – the divorce application and how finances will be split – to be dealt with amicably if you work alongside the right lawyer to guide you through this process and if both parties are willing to co-operate.
You need to attend Court to deal with financial matters.
Leading on from the above, if there are no disputes over the finances or children of the marriage, it is very much possible to get divorced without attending Court, as long as the parties are able to communicate to reach an agreement. Attending Court will only be required if issue arise, and you require the Court to resolve them.
Mediation is a way for both parties to discuss disputed matters such as finances, arrangements for children and any other issues with professionally trained family mediators to avoid entering tense and costly Court proceedings.
If I leave the marital home, I no longer have to pay the mortgage
If the mortgage is in joint names, you and your spouse are both severally liable for the full amount. Most separating couples will come to an agreement with their spouse about who will pay the mortgage until a financial agreement is reached. In some cases, it may not be possible for the spouse leaving the property to pay towards the mortgage and, for example, rent a property. Your solicitor will review your circumstances and suggest an interim agreement with your spouse until a final agreement is reached.