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Common misconceptions about divorce and childcare
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Through internal research, we have put together some free advice and case studies relating to the things that people tend to ask us about, or believe to be true, when they first get in touch with one of our specialist family lawyers, across our offices in Leicester, Hinckley and Market Harborough.

#1. Everything will be divided equally because we are married

If you are married and sorting out a financial settlement, it is not as simple as 50/50. That very often, is the starting point. The legislation which needs to be considered is S.25 of the Matrimonial Causes Act 1973.  S.25 provides a long list of factors to consider when determining what is a fair financial settlement, including the needs of the children, the needs of the parties, the length of the marriage and contributions made.  These factors are then applied to each individual person’s case to determine whether it should be as simple as 50/50 or whether one person should receive more than 50%.

Case Study 1:

  • Husband and wife are married for 25 years.
  • 2 children aged 12 and 5 who remain living with wife on separation.
  • Wife works part time and earns £12,000 per annum.
  • Husband works full time and earns £50,000 per annum.
  • The assets are a jointly owned former matrimonial home and husband has a pension which he has paid into throughout the marriage. Wife does not have a pension.

In the above scenario, could the wife receive 50% or more? The answer is yes.  In order to provide for the needs of both herself and the children, the wife may indeed require more than a half share of the matrimonial assets.

Could the wife claim any of the husband’s pension? The answer is yes.

#2. Mothers have more rights in respect of their child(ren) than fathers

If the father is not married to the mother and is not named on the child’s birth certificate, then the above is correct. However if the father is married to the mother or if the father is not married to the mother but is named on a child’s birth certificate, and their birth was registered on or after 1st December 2003, then both mother and father have the same rights.

Case Study 2:

Mr Smith and Miss Jones are not married.

They have two children, Jack born on 13th December 2002 and Sally born on 27th September 2009.

Mr Smith is named on both children’s birth certificates.

Does Mr Smith have the same rights as Miss Jones in respect of the children?

The answer = No. Mr Smith has Parental Responsibility for Sally but not for Jack. The reason Mr Smith has Parental Responsibility for Sally is because Mr Smith is named on her birth certificate and Sally’s birth was registered after 1st December 2003, whereas Jack’s birth was registered before 1st December 2003.

Could Mr Smith acquire Parental Responsibility in respect of Jack? The answer is yes, either by agreement with Miss Jones, or by seeking a Court order.

If Miss Jones stops Mr Smith from spending time with the children on separation, can Mr Smith take action in order to spend time with his children? The answer is yes.  If need be an application can be made to Court, regarding both children, for a Child Arrangements Order.

#3. There are five grounds for divorce in England and Wales

There is only one such ground in England and Wales, this being that the marriage has irretrievably broken down. However, the Petitioner (the person filing for divorce) has to prove that the marriage has irretrievably broken down by using one of the following five facts:-

  1. Adultery
  2. Unreasonable Behaviour
  3. Desertion
  4. Two Years separation with Consent
  5. Five years separation.

Common misconceptions in respect of divorce are:

  1. If the Respondent (the person responding to a petition for divorce) admits to committing an act of adultery, that person will be penalised when the matrimonial finances are considered.  This is not so.  Contact is only taken into account in very exceptional circumstances when deciding how assets should be shared in a divorce.
  1. Divorces cost thousands of pounds. This is not the case. When you hear “My divorce cost me thousands”, it’s highly likely it was not the divorce but was in fact resolving contested financial and/or children related issues. Bray and Bray offer fixed fee divorces, at a very competitive price.
  1. There is no such thing as a “quickie” divorce.  Regardless of which fact the divorce is issued on, the procedure and therefore the time the divorce takes is exactly the same.  A non-contested divorce normally takes about 5-6 months.

If you would like any advice in respect of any of the above issues, please contact a member of our Family Law team at any of the offices below, or alternatively you can email me directly at lmmohar@braybray.co.uk

 

Family Law offices