A very warm welcome to the latest in our new series of departmental specific newsletters; this month is dedicated to our busy and dynamic Family team.
Anita Shepherd – family solicitor and head of the Family department discusses some of the common myths and misconceptions in Family Law…
It is a regular occurrence when I am advising a client on relationship breakdown that they claim to have been advised as to their rights by friends, acquaintances, relatives or colleagues. It always surprises me what people believe and this misinformation can add to the confusion and distress in an already significant life event. Many have a tendency to generalise about what happens in ‘every divorce’, or else they spread completely wrong information about what the process entails.
So, I have chosen some of the most common myths and rumours that I have come across during the last 15 years that I have been practising Family law.
1. Although we are not married I am his common law wife as we have been together a long time and have children so I have rights as if we were married – everything should be split 50:50.
Not true! Cohabitees/unmarried couples do not have the same rights as married spouses no matter how long they have been together nor whether they have children. It is astonishing how widespread this myth is – in fact, unmarried couples do not have rights or claims in relation to their partners assets/property even if they have lived in the property.
2. He/she will get a reduced share of the assets as he/she was to blame for the breakdown of the marriage.
This is a difficult one for clients as people think that if one party is to blame for the breakdown of the marriage, such as walking out or having an affair, they should not be entitled to an equal/fair split of the assets. This is not the case. The division of marital assets is completely separate from how the marriage broke down. The emphasis in divorce has moved right away from blaming one person or the other. It is extremely rare for a court to be interested in whose fault the break-up was, and it is only in exceptional circumstances that a person’s conduct will have any bearing on how assets of a marriage are divided as they will be divided in accordance with the party’s needs, requirements and resources.
3. He won’t see the kids if he doesn’t pay child maintenance OR she won’t let me see the kids so I’m not paying child maintenance.
These are very common misconceptions and are both wrong. Either scenario may not seem fair but the law is very clear on this. The courts treat issues about children and money as being completely separate. An absent parent is under a duty to pay child maintenance whether or not he/she see their children. This is because it is the child’s right to grow up knowing both of their parents provided it is safe to do so. In addition, a parent has the right to see his/her children whether or not he/she is paying child maintenance. Separating parents should be careful not to confuse children issues and money as this may not be in the child’s best interest as the children end up being deprived of a relationship with a parent due to a dispute between the parents which can have lifelong consequences for the child.
4. I wasn’t unfaithful as we were already separated.
Most people think that being unfaithful means having an affair when you are in a stable relationship with a partner, married or not. In my experience many people think you can’t be unfaithful to someone if you have already separated from them. Morally, that may be right but not so in divorce law. ‘Adultery’ means having a sexual relationship with a person other than your spouse while you are still married to them. It is irrelevant whether or not you are separated. If one spouse has been unfaithful during the marriage, then this is a ground for divorce under the current divorce law (unless you live together for six months or more from the date you discovered the adultery then you are debarred from relying on this ground for divorce).
5. He/she isn’t entitled to my assets because they are in my sole name.
Not true. As long as the marriage was not extremely short, almost everything owned by both the spouses, whether in sole names or joint names, will be viewed as a ‘matrimonial asset’ and will be considered as the property of both and will be divided between the spouses upon divorce in accordance with their needs, requirements and resources. It is therefore important for clients to tell their solicitor about all the assets as the court has the power to transfer an asset from one spouses name to the other no matter whose name it was originally owned by.
6. We have divided our assets between ourselves and obtained our divorce/decree absolute from the court so my ex-spouse has no claims on anything I have post divorce.
Not quite true. Financial claims for spouses remain live against each other after the divorce and until a financial settlement has been determined by the court or approved in a ‘Clean Break Consent Order’ following agreement between the spouses.
7. The debt is in joint names but I never spent the money so I won’t be liable to repay it.
Not true. Debts can be a central source of dispute following the break-up of a marriage because unlike assets, the court does not have the power to remove a person’s name from a debt, regardless of who spent the money. If the credit card bill is in joint names, then the credit card company has the right to come after both of you or one of you for the money until the debt is paid. If the credit card is in the name of one party only and the other party spent the money they will seek repayment from the person whose name is on the account only. I am sure you will be relieved to hear that the divorce courts can take debts into account in the financial settlement and if one spouse is to take on the matrimonial debts, then they may be entitled to a larger share of the marital assets.
8. He/she won’t be able to touch my pension.
This is completely wrong. The divorce law relating to pensions changed in 2000 and is relevant to all divorce petitions filed before 1st December 2000. Pensions are a rather complex area but spouses need to be aware of the simple fact that the court has the power to split pension funds to create two new, completely separate, pension funds. Factors which govern how the a pension fund(s) is split depends on whether the fund was built up during the marriage, how much it is worth, how long it is until the benefits kick in, and what other assets there are available in the marriage. Pensions are therefore a very relevant asset in divorce and often play a large part in deciding how the assets should be divided between the spouses.
To sum up, the important message/ moral of the story for couples embarking on a separation is to not listen to supposedly well meaning gossip/guidance from third parties. Always consult a solicitor who is a resolution accredited specialist in family law as they will be able to provide clear and pragmatic advice in respect to rights, obligations and options. This will achieve a separation/divorce which is fair, amicable and cost effective for all involved.
DeBrieF SPOTLIGHT: Anita Shepherd, solicitor & head of the Family department…
Anita, what does your role at DBF involve?
As the head of the Family department, I am responsible for maintaining and developing family legal services which are pragmatic, user friendly and cost effective. I deal with all aspects of family work such as, divorce, financial settlements, domestic violence, disputes concerning arrangements for children etc. I consider my USP is that I am down to earth and my advice is pragmatic and clear and free from unnecessary legal jargon. I am emphatic and supportive as I fully appreciate the impact relationship break down has on couples and more importantly children due to my own experience of my parents separating during my childhood. I have also developed my skills by training as a collaborative lawyer and achieved status as an advanced accredited specialist in family law.
What is the best thing about your job?
I enjoy the challenge of assisting a client in problem solving the relationship/family difficulties they are experiencing. Nothing is more rewarding than finding a solution which enables a client to progress to a more positive phase of their separation so that they can move on with their independent lives and/or parent their children more effectively as separated parents.
Name the person who has been the biggest influence on your career.
My husband. He has encouraged and supported me throughout my career and not being in the law himself keeps my feet on the ground!
If you were not a lawyer, what would you be doing?
As an active mother of two wonderful sporty sons, I think I would enjoy a role in teaching or in the sports coaching industry.
For more information on Anita and her work, please visit:
DeBrieF OPINION/CASE LAW DEVELOPMENTS
Kirsty Morbey – a solicitor in our Family team – on why it’s important for couples to try to resolve issues surrounding relationship breakdown without commencing formal court proceedings and what alternative options are available…
Family disputes are expensive to resolve by way of formal court proceedings and the outcome is not certain. The court adjudicating on a matter in dispute may not please one or both parties which will make it all the more difficult for the parties to embrace the court’s decision and implement it in their family life. Agreements that are reached between the parties with the help of solicitors and or family mediators have a better prospect of success for the family involved as they themselves have agreed the arrangements/terms.
The first consideration with any new client is to explain the main choices and to assist them in reaching a decision as early as possible as to which process is right for them. The main processes available to separating couples are:
Negotiating your own agreement can be the cheapest option but it can also be complex. The most important thing is to source professional legal advice, have a ‘safety check’ and ratify the terms of agreement into a legally binding settlement.
Lawyer to Lawyer Negotiations:
Negotiating a settlement/agreement through solicitors ensures that the terms/arrangements are in the client’s best interests.
A mediator meets with the couple to identify those issues you can’t agree and help to try and reach agreement in a constructive and supportive setting with the mediator as a neutral third party.
Clients and their respective collaboratively trained solicitors meet face to face to try and resolve the specific issues. Both parties have their lawyer by their side so have support and legal advice from start to finish. An agreement is signed preventing the solicitors from representing you in court if the process breaks down. That means all are absolutely committed to finding the best solutions by agreement, rather than through the court process.
The parties appoint an arbitrator who will make a decision that will be final and binding between the parties and takes place in a less formal setting than a court room.
Court should always be the last resort after all other options and processes have been exhausted. At court, a formal timetable is imposed and the court procedure must be adhered to. If the case proceeds to a final hearing, the court has a broad discretion in making a final decision based upon what a judge thinks is fair. This can result in uncertainty and stress and is a costly option.
To learn more about Kirsty, please visit her profile:
The Family team at Davis Blank Furniss has had a busy few months including securing panel membership for Lawyer Supported Mediation and being involved in HOTpod – the growing High Peak, Oldham & Tameside based professional practice group that actively promotes and raises the profile of the collaborative law option for clients.
To learn more about these, please visit: