Divorce and Separation: 7 common myths

There is a certain amount of misinformation surrounding divorce, the process, financial settlements and the arrangements for children should you separate or divorce. Here we take a look at seven of the most common divorce myths and what the truth of the matter is.

1. One party needs to apply for the divorce, saying why they blame the other

Since April 2022, there is no longer any scope for either party to blame the other in any way when applying for a divorce. The only ground for divorce is the irretrievable breakdown of the relationship and no evidence needs to be provided in support. Either party can ask for a divorce on this basis and couples can also apply to the court together asking for a divorce. This is intended to prevent any worsening of a relationship or the feeling that one party is accusing the other of anything.

It is also now the case that neither party can prevent the other from seeking a divorce.

Read more about no fault divorce here.

2. Once you are divorced, you do not have any financial liability for your ex-spouse

Divorce alone does not end financial obligations between spouses. This means that if you are contemplating divorce, you must also put in place a legally binding financial arrangement. This can be agreed upon by negotiation and consent or dealt with by the court. In either case, the court will make an order setting out financial terms. Without a court order, there is a risk that your former spouse could make a claim against you long into the future.

3. Assets are shared equally on divorce

While the starting point for the court in considering the splitting of matrimonial assets is a 50:50 split, there are many other factors that are taken into account and that could mean one party receives more than the other. These include:

• The needs of any children involved
• How able each party is to earn money
• The contributions each party has made to the family, to include homemaking and raising children, which could have involved giving up a career and subsequent lower earnings
• The financial needs, obligations and responsibilities that each party has or will have in the future
• The parties’ ages
• The length of the marriage
• The parties’ standard of living during the marriage
• Any physical or mental disabilities the parties have
• Any benefits the parties might lose because of the divorce

4. Mothers always get “custody” of the children

The courts always put the best interests of a child first. The courts also prefer that child arrangements are made by way of negotiation and agreement between the parents, without the intervention of the courts. The term ‘custody’ is no longer used and it is generally hoped that children will have a meaningful relationship with both parents.

If the court is asked to make a ruling, it will consider a number of factors, including:

• The child’s wishes and feelings, taking into account their age and understanding
• The child’s physical, emotional and educational needs
• The child’s age, sex and any other relevant characteristics
• The capability of each parent to care for the child
• What effects change may have on the child
• Any risk of harm

Where one parent has formerly carried out the majority of the day-to-day care of the child, the court will often find that it is appropriate for this to continue, and that the child lives with that parent.

5. The person with “custody” of the children makes all the decisions in their lives

Where both parents have parental responsibility, they are both entitled to be involved in making decisions in their children’s lives. While the parent looking after the children can make simple everyday choices, such as what a child will eat or do, larger decisions such as which school they will attend, which religion they will follow and what medical treatment they will have should be made jointly.

6. Women will get the family home

If there are children involved, then the court may well find a solution that allows their main caregiver to stay in the family home. Depending on the financial situation of a family, the other spouse will generally receive a larger share of other assets, such as pension provision, if the family home becomes the property of the parent staying there. There are also other ways of dealing with the family home, such as delaying a sale until the children are grown and then splitting the sale proceeds.

If a couple do not have children, then one may be able to buy out the other’s share of the home or the property could be sold and the sale proceeds split as agreed upon or as ordered by the court.

7. You need to attend court to get a divorce

You do not have to go to court to obtain a divorce. While the application for a divorce needs to be made to the court, the process can be dealt with by post.

With regard to other issues such as the division of property and other assets and arrangements for children, if you are able to reach an agreement with your spouse, then this can also be dealt with without the need for you to attend court. Your solicitor will draw up a draft consent order setting out the agreement you have made and send it to the court to be sealed. Unless the court has any questions, you will not need to attend.

It is only when issues cannot be resolved that you may have to go to court. If you and your spouse are not able to agree, you will generally be referred to mediation. A mediator will work with you to help you both try and reach an acceptable agreement. This can be much faster than waiting for a court hearing and it also gives you more control over the outcome. Your solicitor will be able to refer you to a mediator and ensure you have the support and guidance you need throughout the mediation process.

Contact us

Chadwick Lawrence has offices across West Yorkshire and can provide specialist family law advice over the telephone, via a video call or in person at one of our offices. If you would like to speak to one of our expert family lawyers, ring us on 0800 015 0340 or email us family@chadlaw.co.uk