The truth about divorce « McAlister Family Law


The truth about divorce

Jonathan Casey


Sometimes people come into our offices, absolutely convinced that they know something about divorce for a fact, already certain how things in their divorce will pan out.  “We’ve lived together for six months, which makes me his common law wife,” for example, or “she’s had an affair, so she won’t get as much money when we divorce.”  Every case is different, and everyone is different – certainly there is no one-size-fits-all solution – but we can help correct some of the mistaken assumptions that surround divorce.

Common law marriage

There’s no such thing.  It is a widely held misconception that people in a romantic relationship living together for more than a particular period of time – some think six months, or one year, or longer – are “common law spouses.”  They believe that this self-awarded status gives them the same rights as a legal married couple, especially if children are involved.

This simply isn’t the case. 

There is no such thing as a “common law wife” or a “common law husband”.  Even couples who have been together for decades may discover upon separation that they do not have any legal recognition, leaving them with no ability to ask the Court for a financial award against their former partner.

However, couples who live together can protect their interests with a Cohabitation Agreement (more details here).  If you make sure to draw one up as early on as possible, this legal agreement will help couples deal with potential issues in the event that their relationship breaks down.

Whoever commits adultery gets a smaller financial settlement

One of the most common assumptions around divorce is that there will be a financial impact if one partner has had an affair and left the marriage as a result. But this rarely makes any difference to the overall division of assets: when it comes to money, by and large the court is not interested in why the marriage is ending, but rather what resources each party has available, and how they are to be divided fairly.  We’ve written in greater detail about this here.

The courts have a secret formula for deciding who gets what

The current law is discretionary, which means the courts have discretion as to how to divide up, between the couple, the income, debts and assets. Fairness is the key, based on what each party needs to live on, and the principle of sharing.   Every case is different, and all the competing factors and circumstances are taken into account. There is not, nor has there ever been, a secret formula that is automatically applied.  We are all individuals and the court recognizes that.

Adultery is grounds for divorce

Well, yes, it is, but with an important caveat.  In English law, that is, the legal system administered by the courts in England and Wales, the court can only grant a divorce on the grounds of adultery if it is committed by your spouse with a member of the opposite sex.

If, for example, your husband leaves you for another man, you will not be able to use the fact of his adultery on its own to ask the court to give you a divorce. Instead, you would have to petition for divorce based on “unreasonable behaviour” and give examples that demonstrate this, one example of which could be their infidelity with a member of the same sex.  In essence you need to show that you cannot reasonably be expected to live with your spouse any longer.

There are many who believe this to be a law that is discriminatory, and a prime example of why divorce laws need to be reformed.

hiding assets in a divorce

You can hide assets from the court

Full disclosure means just that: full.  The courts take a very dim view of anyone who tries to hide their financial assets. If there is evidence to suggest that a party has deliberately withheld information, at the very least the court may draw adverse inferences against them, and in the most extreme cases, that party could find themselves facing criminal proceedings. 

Second marriages are more likely to fail

Actually no, they’re not.  In fact statistically, they’re much more likely to succeed.  Figures from the Office for National Statistics (ONS) demonstrate that second marriages overall do consistently better than first marriages. Where one or both spouses are marrying for the second time, couples marrying today face an estimated 31% risk of divorce during their lifetime, compared to an estimated 45% risk of divorce amongst couples where both spouses are marrying for the first time.

If any of these issues affect you or you have any questions, please get in touch.  We're here to help you. 




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