Family Law FAQ’s and Common Misconceptions

PUBLISHED 13.12.21

 

Family Law is a complex area of law and, often, similar questions are asked relating to common misconceptions. Below are some of the more frequently asked questions and assumptions, and an insight into the law behind them. If you would like to speak to a member of the Family Team for further information or specific guidance relating to a situation, contacts us today for your Free Initial Consultation.

 

My spouse has left me for another partner – am I likely to receive more in the financial settlement?

It is usually not relevant to the financial settlement what the reasons were for the breakdown of the marriage or whose “fault” it may have been. The Judge will simply look at what financial assets there are and how they can best be fairly divided between the parties. It is only in extremely rare circumstances that one party’s behaviour during the marriage has an effect on the financial settlement.

 

Am I entitled to half my spouse’s future income on a divorce?

This is not necessarily the case. The law puts an emphasis on the parties reaching a clean break agreement if at all possible. This means that there are no ongoing financial ties between spouses after the divorce. After a very long marriage, there is likely to be a period of spousal maintenance but it is based on needs and not based on half of your spouse’s income.

 

If they are my common-law spouse, am I entitled to a share of their assets.

There is no such thing as a common law spouse in our country. You are either married or you are not. If you are not married, in England and Wales, there are no laws in place to divide assets between a cohabiting couple. It does not matter how long you may have been together or whether you have children. You will only be entitled to anything in joint names and you can keep what is in your sole name.

 

If we have children together but are not married, does my ex-partner have a duty to re-house us?

If you were not married, this is not true. Whilst you may have a claim against a property (depending on Land law), the fact that you have children together does not mean you are entitled to stay in the property or to have one provided for you and the children.

You may be able to make a claim under the Children Act 1989 for financial support but if a house is provided for you to live in, it would only be until the child is 18. After this point, the house reverts to the other party as you would not have a financial interest in the property.

 

I have a right to see my children.

Contact is a right of the child not of the parent. A child has a right to have a relationship with both their parents. This does not mean that a child should spend their time 50-50 with each parent. It just means that the child should have a relationship with both parents. In some circumstances, the court may deem it safe for there only to be indirect contact between a child and their parent.

As the child gets older, they have more of a right to influence the arrangements with their parents. Certainly, a teenager can decide whether they do or do not want to see/spend time with a parent and this can often be the determining factor.

 

If I pay child maintenance, surely it means I have more rights to see my child than someone who does not?

That is not the case. Contact occurs irrespective of whether a parent pays child maintenance or not. Just because you pay, does not mean you would have contact.

 

As a grandparent, I have rights to see my grandchild.

This is not the case. The only people who have legal rights and responsibilities for their children are the parents, or those who have had parental responsibility given to them by way of court order. A grandparent has no rights to see their grandchild or any legal responsibility for them. If the relationship with the parents break down, a grandparent would have to seek permission from the court to even make a court application to see their grandchild. The court will only grant permission for the grandparents to make the application if it believes the application is in the best interests of the child.

 

Disclaimer: This information is intended as general guidance only. It is specific to the law of England and Wales, and represents a brief outline of the law current as at the date of publishing. It is not intended to constitute, or to be a substitute for, legal advice specific to your case. For advice specific to your case, please contact Dunn & Baker Solicitors on:

Exeter 01392 285000    Cullompton 01884 33818