21 October 2022

Having finally watched “The Split” (having been asked continually about it and if it was like real life as a family lawyer), it was intriguing to note the focus in it around the “good divorce” as something to be strived for. What was most striking about this is that, while it is the approach family lawyers usually take, it is sadly far cry from the usual portrayal of divorce and separation in popular culture and the media. As many family lawyers will tell you, many of the misconceptions clients have when they first engage a family lawyer are perpetuated by what they have seen on the television or read in the media.

This article aims to bust some of the main myths and misconceptions in popular culture today.

“We have lived together for 30 years, so we don’t need to get married. I am a common law wife, which is recognised by the law”

It is a common myth that living together as an unmarried couple for a prolonged period of time results in a ”common law marriage” which comes with some legal and financial rights’. However, living together for however long a period does not give cohabiting couples the same rights as married couples.

The concept of the nuclear family is quickly disappearing, with unmarried, cohabiting couples becoming the UK’s fastest growing family type. The number of cohabiting couples has doubled from 1.5 million in 1996 to 3.6 million in 2021. Despite this, in England and Wales there is very limited legal protection for unmarried cohabitants. Save for limited financial claims if there are children, the only financial claims a cohabitant can make on relationship breakdown are under property and trust law – not family law. There are some rights in Scotland, but the family law system is entirely different in Scotland for married couples too.

There are attempts by people in the mainstream media to dispense with the myth of the common law spouse (thank you Martin Lewis who included details about this in his weekly newsletter on 12 October), but the law lags behind this new family norm and most couples still do not know what their rights are. There is recognition of this discrepancy within government - the House of Commons Women and Equalities Committee’s latest report on the rights of cohabiting partners, can be found here. However, whilst the law remains as it is, it is important for couples know their rights, and consider having a Cohabitation Agreement, which can set out how a property is owned, paid for and what the financial resolution will be if they split up

“She had an affair, so I should get more”

It is a common misconception that if someone has “caused” the breakdown of a marriage, the innocent spouse should receive a greater share of the matrimonial assets, as a compensation of sorts. However, the divorce and finances are dealt with separately, and unless there has been extreme financial conduct by one party, the reason for the divorce is will not have any bearing on the financial settlement. The court is more concerned about the needs of the party, than who is to “blame”.

This is even more obvious now we have a no fault divorce system, rather than adultery being cited as a reason for the divorce. This replaced the old system requiring blame on 6 April 2022 and places further emphasis on the fact that blame and conduct will not affect the division of assets. Following ‘no fault divorce’, the applicant merely needs to certify that the marriage has broken down, with no reasons stated.

For more information on no fault divorce, do read Richard Handel’s article here.

“Celebrity couple’s quickie divorce”

“Quickie divorce” is a term often used in the mainstream media to describe celebrity divorces, suggesting there is a fast track to get divorced, if you can afford it. There is not. Celebrities, like the rest of us, are not able to get divorced within the first year of marriage and, under the new fault divorce system, the process of getting a divorce takes a minimum of 26 weeks - a 20 week period for reflection, following the initial application and then after this “cooling off” period, the applicant (or both applicants as it can and is often done jointly) can apply for the Conditional Order (the mid-stage of the divorce). Only after a further six weeks, they can apply for the Final Order which dissolves the marriage.

An article suggesting that a couple got divorced in a “60 second hearing which neither of them attended” is misleading. Whilst claiming that the parties are divorced, in fact this is often just the Conditional Order (previously called Decree Nisi). Despite the change in law, the Conditional Order still has to be proclaimed in open court, so a hearing date is given for that to happen. There is no expectation for anyone to attend these hearings, celebrity or otherwise. Therefore, despite the insinuation that the couple are then divorced, in fact they remain married until they obtain a Final Order in their divorce (previously known as Decree Absolute). Given the Decree Absolute is a piece of paper, it’s just not as exciting an article!

“There’s no point having a pre-nup, they’re not worth the paper they’re written on”

As nuptial agreements, pre-nups and post-nups, are enforceable by law/statute in not England and Wales, it is a common mistake that they are not worth having. However, since 2010, a couple is likely to be held to a pre or post nuptial agreement if it is contractually valid, meets certain tests relating to its form and adheres to certain safeguards. In 2010 (Radmacher v Granatino), the Supreme Court made it clear for the first time that nuptial agreements will be upheld if they are freely entered into by each party and there are no prevailing circumstances that would make the agreement unfair to the other party.

In 2014, the Law Commission published recommendations for qualifying nuptial agreements. A qualifying nuptial agreement cannot contract out of providing for a party’s needs, must comply with the fairness test set out in Radmacher and comply with the following criteria:

  • It must be contractually valid;
  • It must be validly executed as a deed and contain a "relevant statement";
  • It must not have been made within the 28 days immediately before the wedding;
  • Both parties to the agreement must have received disclosure of material information about the other party's financial situation when they entered into the agreement; and
  • Both parties must have received legal advice at the time they entered into the agreement.

Although the Law Commission’s recommendations are not yet enacted, it is prudent that the above criteria is followed to ensure that the pre-nuptial agreement will be upheld in court.

It is worth noting here that again, the position differs north of the border in Scotland, where pre and post nups are absolutely binding.

“The custody battle”

How many times have you heard one TV character scream at another about “going for full custody”, or read an article (not just in the tabloids) referring to a “bitter custody battle” about children. Custody in relation to children of separated parents no longer exists as a legal concept in England and Wales. Instead the law focuses on “child arrangements”, that is where the children spend their time. This switches the emphasis, recognising that the best interests of the children should be at the forefront of everyone’s mind and moving away from language which suggests one parent “gets” the children.

Whilst the court, and family lawyers have shifted this emphasis away from this adversarial language, the media often still portrays the position as f the children as something to “have custody of” or “contact with”. It is arguably this myth which has the deepest roots, and is perhaps the most damaging as family lawyers, courts, alternate dispute resolution and therapeutic means all focus firmly on trying to make a separated family function with the children’s best interests as being paramount and it being the starting point that time spent with both parents will be in accordance with that.

There is no suggestion that the media or fictional television programmes are treated unequivocally as a factual source of information by those who read or watch. However, there is a real question about whether they do have some responsibility as to how some of these issues are portrayed, the impact this then has on relationship and family breakdown in the real world and the importance the public place on the information they consume, without necessarily even realising they are doing so.

If you would like to discuss anything in this article, please contact Sarah Hoskinson or Hebe Thorne.

Written by Hebe Thorne and Tamara Turner-Distin.

Key contact

Sarah Hoskinson 1

Sarah Hoskinson Partner

  • Family Law and Divorce
  • Private Client Services
  • Private Wealth

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