Common law marriage and other Family Law Myths

As an space of the law that capabilities closely in well-known tradition and the media (think “The Split”, “A Relationship Story”, “The Mum or dad Trap” etc), divorce and family members regulation is complex, dynamic, and frequently misrepresented and misunderstood.

As a trainee solicitor in Kingsley Napley’s Relatives and Divorce office, I have invested my time with the workforce unlearning many of the myths and misconceptions all around divorce, preparations for kids, the courtroom procedure, and spouse and children dynamics. This article aims to different reality from fiction when furnishing insight into some of the issues our legal professionals handle working day-to-working day.

Fantasy 1: Frequent-legislation relationship exists.

In brief: It does not (in England and Wales).

Opposite to well-liked perception, there is no these kinds of matter as a ‘common law’ relationship in England and Wales. This myth probable endures in element owing to misguided Canadian expats like myself, who in Canada, understand prevalent-law associates to necessarily mean a pair who has lived together, uninterrupted, for a sure total of time, who will for that reason be entitled some of the exact same benefits as married or civil associates.

In distinction, partners in England and Wales who are living together but are not married or in a civil partnership (also recognised as cohabiting partners), do not have the exact same legal rights or obligations as a wife or husband or civil husband or wife, regardless of how very long they have lived alongside one another or whether or not or not they have small children.

Crucially, this means legal rights to joint home, youngsters, and finances are much far more uncertain in the event of a separation than if you had been in a relationship or civil partnership. In point, there are number of economic promises you can make ought to you and your companion individual in the future. This space of legislation often demands thing to consider of trusts and property law and can need detailed evidence relating to funding, widespread intentions, and the romantic relationship record. 

Sadly, the government is nevertheless hesitant to introduce legal reform that shields the rights of cohabiting partners. Right until it does, cohabitation agreements remain a well-known and valuable option to best defend your passions if you are residing with your spouse.

We frequently operate collaboratively with our Non-public Client and Real Estate teams to draft cohabitation agreements and Declaration of Trusts, to aid choose the finest strategies to go after ought to you discover you in this problem.

Fantasy 2: Prenuptial agreements are not recognised in England and Wales.

Nuptial agreements (ie. a prenups or postnups) are lawful in this article, nevertheless, they are not legally binding in court docket.

Almost, this means that although they are not routinely enforceable in court, if sure needs are fulfilled, a nuptial arrangement (a PNA) may perhaps be upheld in court docket.

Given that the 2010 circumstance of Radmacher v Granatino, the court should give impact to a PNA that is freely entered into by every bash with a entire knowing of its implications, except if it is unfair to keep the get-togethers to the settlement. The specific formalities that a PNA should really meet up with are as follows:

• it have to not test to agreement out of duty for the economical needs of any small children
• just about every party should disclose to the other enough element of their economic position – to include any pre-present and/or inherited prosperity – and respond to any acceptable thoughts the other may possibly have (in apply, these enquiries are seldom made)
• it ought to be signed at least 28  days in advance of the wedding ceremony
• there must be no recommendation of duress, fraud, undue affect, misrepresentation or blunder ahead of getting into into a PNA and
• every single get together really should have impartial authorized information before signing.

As a consequence of this circumstance, nuptial agreements have develop into more and more preferred as they deliver a valuable highway-map for operating out how you want to organise your funds just after you marry, and a are unsuccessful-secure in scenario issues really don’t go in accordance to strategy. On divorce, there will always be scope for argument about whether the PNA need to utilize, so it is constantly essential to look for legal guidance if you are questioning whether or not a PNA is right for you and your associate.

Fantasy 3: You will get a far better monetary settlement on divorce if your spouse cheated.

Sad to say, this is even now a extensively held perception that if just one companion can be “blamed” for the divorce, that the other is very likely to be compensated by currently being awarded a greater share of the matrimonial belongings. This is only not correct.

Divorce, finances, and arrangements for any children are all dealt with individually in family members court. The explanation for a divorce is not applicable to any financial proceedings. Alternatively, the courtroom assures that the family’s belongings are shared reasonably and just about every of the get-togethers and any children’s “needs” are achieved when pinpointing any economical settlement. 

Additionally, the govt not long ago enacted the Divorce, Dissolution and Separation Act 2020 (the DDSA) replacing the aged procedure which required couples searching for a divorce to influence the court that their marriage experienced “irretrievably broken down”. To do so, they had to cite just one of 5 reasons: 1) unreasonable behaviour, 2) adultery, 3) desertion, 4) 2 many years of separation and consent, (5) 5 years’ separation devoid of consent from the other get together. This new “no-fault” divorce process which arrived into outcome on 6 April 2022, taken off the ingredient of “blame” completely from divorce proceedings.

Myth 4: As soon as the divorce is finish, your spouse no for a longer period has any claim to your belongings.

As described higher than, divorce, funds, and preparations for any children are all dealt with independently in spouse and children courtroom. The divorce or separation only refers to the lawful position of the relationship or civil partnership, not the monetary statements the partners have.

If a economic consent purchase is not drafted and authorized by the court docket (both by court proceedings, lawyers (non-public FDR or mediation), or Arbitration (far more information right here), fiscal statements can stay open, which means that your lover could make a monetary claim a great deal later on following the day the divorce was finalised.  

Fantasy 5: It is a custody “battle”.

Adore may be a battlefield, but divorce and selecting arrangements for any young children you share with your companion, surely does not have to be.

Yet another probable symptom of Tv set, movie, and tabloids, dad and mom heading via divorce and separation are frequently pitted towards each individual other applying language indicative of a fight in its place of how preparations involving small children must be managed, with cooperation and compassion.

The principle of “custody” does not exist legally in England and Wales. The Loved ones Court alternatively refers to matters involving youngsters of separated moms and dads as “child arrangements”. Loved ones legislation specialists are shifting away from the use of adversarial language in favour of additional inclusive and cooperative language, acknowledging the destructive effect that it has on mom and dad heading by way of divorce and separation and so also on their kids.

When our present-day lawful method, which is adversarial in mother nature, does not assist issues, more and more there have been strategies for reform and customer demand from customers for more options exterior of the courtroom environment. Dad and mom are now capable to access a holistic range of assist from therapists and mediators together with lawful companies to assistance them solve challenges collectively, fairly than get the job done from every single other.

As an example, mediation is a discussion board inside of which dad and mom are encouraged to have the kids at the centre of the conversations. Mediators will explore with mothers and fathers what they imagine will be ideal for their little ones, what their day to day activities have been so considerably and what they imagine about the recommendations being set forward. It is the responsibility of mediators to also take into consideration no matter if baby inclusive mediation is proper in precise circumstances.  This includes a specially skilled mediator getting appointed to fulfill with the kids. Even if the little ones do not specifically participate in the mediation approach, it is the mediator’s job to make guaranteed that they have a voice and a presence in the classes by inquiring the adults questions about them and how they could be emotion.

Fantasy 6: Surrogacy is not an selection for couples seeking little ones in the British isles.

Family law is an important region of legislation that safeguards the rights and duties of each and every member of a loved ones and addresses a huge assortment of troubles from separation and divorce to child arrangements and surrogacy. Even in situations that may well appear distinct-slash, there are typically advanced legal, fiscal, and psychological things to look at.

It is vital to seek out legal advice when working with family regulation issues as an professional solicitor can assist you navigate the lawful technique, guard your finest interests and guidebook you through the matters protected in this report with clarity and compassion. With lawful advice, you can make informed conclusions, really feel a lot more self-confident in the legal course of action, and do the job toward the greatest doable end result for you and your loved ones.