Relationship breakdown: get the right advice
PUBLISHED: 09:59 17 January 2016 | UPDATED: 10:22 19 January 2016
Valuable legal advice from Napthens, myth-busting divorce and relationship rumours.
At some stage in our lives, most people are touched by divorce and the consequences of relationship breakdown - if not directly, then through the experiences of family and friends.
When a relationship breaks down, it can be a difficult time for those involved - both emotionally and financially. At Napthens we recognise that your situation and needs will be unique to you. So, with a solicitor from Napthens on your side, the first thing you can expect is someone who listens.
With offices located across Lancashire and Cumbria, you’ll find we have the experts on hand to advise and provide the support you need, when you need it.
Dealing with the ‘myths’
As experienced family lawyers we know that people hear stories from friends, from watching TV or reading magazines and pick up ideas about the legal issues surrounding the divorce process.
But every situation is different – so it’s unwise to rely on anecdotes about what may have happened to someone else.
Here are just a few of the ‘myths’ and misunderstandings we come across on a daily basis. Hopefully this guide will help to dispel some of those myths but for further information on any of these questions or to arrange a free initial consultation to discuss your own situation please contact us:
E: email@example.com or T: 0345 671 0276
Myth: ‘Common law marriage’
Unmarried couples have different legal rights from married couples. Contrary to popular belief, there is no such thing as a ‘common law husband or wife’.
Many people assume that by living together for a long period of time a couple will be classed as having a common-law marriage. In fact, under British law there is no such thing.
Couples who live together but are not married (even if it has been for many years) have no automatic rights to claim capital or income from one another should their relationship breakdown.
It is therefore important for example, when buying property together, to be clear about how shares in the property are to be held. The fact that an individual has contributed financially towards a property does not give them an automatic interest in that property.
In divorce proceedings a judge has discretion relating to finances to be fair and reasonable, but unmarried couples are bound by property law principals. This can result in unfairness if an unmarried couple separates.
Change is on the way
It is worth noting that change could be on the way thanks to the Cohabitation Rights Bill which is on its way through Parliament. But as it stands the law relating to cohabiting couples is complex and legal advice is recommended.
It is possible for couples to protect their position by entering into a cohabitation agreement.
When a couple set up home together, this agreement allows both parties to set out their intentions in relation to finances should they separate in the future.
Myth: I will have to go to court
Over time the Government’s aim has been to encourage as many couples as possible to reach agreement without recourse to the courts. Rules now specify that parties are expected to explore the scope for resolving any dispute through mediation before embarking on the court process.
It is of course, desirable for couples to sit down and sort out their differences in a calm and measured way. The role of a mediator is to facilitate negotiation. However, there are times when mediation is not appropriate. Sometimes the mediator will conclude that a case is not suitable, in other cases mediation proceeds but it proves impossible to reach agreement and parties then need to consider other options.
Alternatives to court
There are alternatives to dealing with cases through the courts. One such process which has emerged in the past few years is ‘collaborative law.’
This is a method of approaching the issues arising on relationship breakdown where the couple agree not to go to court. Instead the couple meet alongside their solicitors to discuss the way forward and hopefully negotiate an agreement. Each party must engage a solicitor who is a qualified collaborative lawyer. This route is potentially quicker, cheaper and less acrimonious than the court process. If the process breaks down and either party wants to use the court, then new solicitors must be instructed if there are to be court proceedings.
Another interesting development, where agreement cannot be reached and a decision has to be made, is the availability of arbitration for the financial issues arising on divorce. The advantages are that parties can choose the arbitrator who will decide their issues and make the award. The process offers flexibility, speed, informality, confidentiality and an ability to deal with discrete issues where it would be disproportionate to go to court.
If you are considering a divorce you should discuss the options available with a specialist family solicitor who can advise you on the process that best suits your needs.
Myth: ‘Fault’ in divorce affects financial settlements
Generally courts are not influenced by who is at fault when dealing with financial issues when a marriage breaks down. There is no point in arguing over whether one person acted unreasonably or who is to blame for the break-up. Conduct has to be extreme for ‘fault’ to be taken into account and this is very rare.
Myth: The ‘quickie divorce’
One of the most common myths we come across is the ‘quickie divorce’. While the media sometimes portrays divorce in this light, an undefended divorce typically takes 4 – 6 months to finalise, if things run smoothly and parties co-operate with each other. In many cases however, the divorce itself will not be made final until the finances have been resolved.
Myth: ‘I’ll be taken to the cleaners!’
The court always aims to achieve a fair outcome for those involved in divorce. In many cases an equal division of assets is achieved. The main reason to depart from this is where there are children involved and the main carer needs a larger share of the assets in order to provide a home for them. The courts are gender neutral on financial issues.
Deciding to divorce is one of the biggest decisions anybody is likely to make during their lifetime. As well as emotional issues, there is often concern around whether there will be enough money to support two separate households and whether the legal costs are affordable.
Undoubtedly lawyers make more money in a divorce case if one or both parties adopt an unreasonable position. In reality though, every effort is made to assist parties to reach agreement and mediation is encouraged.
These days many law firms like Napthens, offer fixed fee packages for divorce and financial matters which give clarity and provide the ability to budget ahead, giving welcome peace of mind on costs.
Myth: Pre-nuptial agreements are ‘worthless’
Pre-nuptial agreements are given considerable importance by the courts and will be effective in many cases, provided they have been properly prepared - and are fair.
Sensible to plan
There can be few harder conversations to start than the one about who will get what if the worst comes to the worst. Yet most people will have family and friends who have been through the experience of a divorce, so why should it be so difficult to consider the possibility and to try plan for it? It is merely sensible financial planning and as soon as it is done you/they can forget about it and move on. An agreement will be made when a couple are thinking calmly and clearly – not when they are in the middle of the emotional rollercoaster of relationship breakdown.
At Napthens we have been preparing more and more pre-nuptial agreements in recent years. Anybody with assets accrued prior to marriage which they wish to protect, should consider a pre-nuptial agreement. This is often the case where people are marrying for a second time and want to ensure for example, that children from their first marriage are adequately provided for, or for example, want to retain any inheritances received. A pre-nuptial agreement can often achieve this aim - provided that the division of other assets meets the other party’s needs. Even where a court does not uphold the exact terms of a pre-nuptial agreement, it will have regard to the terms and it is likely to affect the Order that the court makes.
Without doubt, if you own assets when you enter into marriage, a pre-nuptial agreement will give you a good prospect of retaining those assets.
You might be planning to live together or get married – talk to us about how we can help provide peace of mind for your future.
For anyone considering divorce, it is important to ignore the myths and talk to a professional adviser who will be able to clarify your situation and help you to understand the process. Options including mediation, fixed costs, collaborative law and arbitration have brought flexibility to the system in the past few years which many people are not aware of. This flexibility allows couples to look for the process that best suits personal circumstances and requirements and provides a range of options on potential costs.
At Napthens we put our clients at the heart of what we do. Our aim is to provide a professional yet friendly service and we offer a free initial consultation without obligation. Please contact our family team to arrange an informal chat:
T: 0345 671 0276