Divorce Day follows hot on the heels of Christmas
The first working Monday of the New Year has become known as “Divorce Day” due to the high number of enquiries solicitors receive following the Christmas period. This is increasingly becoming the busiest time of the year for family lawyers.
With a wealth of potentially misleading information available online and on web forums, many people rely on hearsay and anecdotes from friends and acquaintances about their own divorces as a way of trying to understand the Court’s approach. This results in people having a number of misconceptions about this area of the law, for example:
1. I am a “common law spouse” and have the same rights to my partner’s assets and income as I would if we had been married.
There is no such thing as a “common law husband/wife” and should a relationship breakdown there is no automatic entitlement to a share of your ex-partner’s assets.
2. If your husband/wife committed adultery you will be entitled to a greater share of the assets.
A party’s adultery, whether admitted or otherwise, will not be taken into account when distributing finances on divorce. Adultery is one way of establishing that the marriage has irretrievably broken down and once this has been established there will be no need to reference it again.
3. The Court takes into account who is to blame for the breakdown of the marriage.
The Court is not concerned with apportioning blame to one party. The Court’s aim is to assist in finalising matters and moving the process forward. Similarly, the Court will not consider the conduct of either party during the proceedings unless it is of a severe nature.
4. There is such a thing as a “quickie divorce”.
Despite all the features in glossy magazines about celebrity “quickie divorces”, there is no such thing. The legal process of divorce has to follow a set structure which is the same for everybody. The only way of speeding up a divorce is if both parties comply and promptly sign and return all necessary paperwork. It is also important to remember that the speed a divorce progresses depends on how busy the Court is, which varies from time to time.
5. Assets are divided 50/50.
Although this is the starting point, the Court will consider other factors such as the age of the parties, the length of the marriage and the needs of each of the parties amongst other things. Not all cases warrant an equal division of the assets and a lot depends on the individual circumstances of the case.
For example, if one party has primary care of young children and is unable to work full time or at all then the Court may consider it fair to award that party a greater share of the matrimonial assets to reflect this. There may be inherited wealth to be treated differently or pre-marital assets to distribute separately.
6. The woman always ‘wins’.
The legal system does not favour one gender over the other. The Court considers various factors such as the contribution of each party, their income needs, their earning capacity etc. before distributing the assets. There are many cases where a husband has given up work to look after children resulting in the wife having a successful career and being the higher earner.
7. Men cannot receive spousal maintenance.
Maintenance is not gender specific. Spousal maintenance is designed to be paid from one spouse to the other where they cannot meet their reasonable needs from their own income. If the wife is in a higher paid job and the husband is unable to meet his reasonable needs, for whatever reason, then he may be able to seek spousal maintenance from his wife.
This is a very risky game to play. The Court has various powers to protect a party who believes that their spouse will try to hide assets. Assets can potentially be frozen or a transaction can be reversed. The Court takes a very dim view of any party who attempts to hide assets.
9. You should not disclose anything which you are not prepared to share.
There is a strict duty of full, frank and clear disclosure in all family matters. Failure to adhere to the Court’s requirements in relation to disclosure can have severe consequences such as a term in prison.
As the above information shows, people should be wary of listening to stories or reading information on the internet from unknown sources. Each case is different and very much rests on its own facts. We always recommend that people seek professional advice from a lawyer to ensure that they are not disadvantaged in any way and achieve a settlement that meets their needs.