Family Law Myths Include Common Law Marriage and Adoption
Divorce and family law are complex, dynamic, frequently misrepresented, and misunderstood areas of the law that are heavily featured in popular culture and the media (think "The Split," "A Marriage Story," "The Parent Trap," etc.).
I have spent my time as a trainee solicitor in United Solicitor's Family and Divorce department dispelling many of the myths and misconceptions surrounding divorce, child custody arrangements, the legal system, and family dynamics. This article seeks to distinguish fact from fiction while shedding light on some of the daily issues our attorneys deal with. United Solicitors offer best family law solicitors manchester.
MYTH 1: COMMON-LAW MARRIAGE EXISTS.
Contrary to popular belief, a marriage that is "common law" in England and Wales does not exist. This misconception probably persists in part because of misinformed Canadian expats like myself, who believe that common-law partners in Canada are couples who have lived together continuously for a predetermined period of time and are thus entitled to some of the same benefits as married or civil partners.
Contrarily, regardless of how long they have been living together or whether they have children, couples who live together but are not married or in a civil partnership (also known as cohabiting couples) do not have the same rights or obligations as a spouse or civil partner in England and Wales.
Importantly, this means that in the event of a separation, your rights to shared assets, children, and finances are much less certain than they would be if you were in a marriage or civil partnership. In actuality, there aren't many financial claims you could make in the event that you and your partner ever decide to part ways. This area of law frequently calls for the consideration of trusts and property law and may call for specific proof of funding, shared intentions, and relationship history.
Unfortunately, the government continues to be hesitant to enact legislation protecting cohabiting couples' rights. Cohabitation agreements continue to be a common and practical choice to best protect your interests if you are living with your partner until it does.
In order to help you decide the best courses of action to take should you find yourself in this situation, we frequently collaborate with our Private Client and Real Estate teams to draught cohabitation agreements and Declarations of Trust.
MYTH 2: PRENUPTIAL AGREEMENTS ARE NOT RECOGNISED IN ENGLAND AND WALES.
Prenuptial and postnuptial agreements are legal in this country, but they are not enforceable in court.
This translates practically into the possibility of a nuptial agreement (a PNA) being upheld in court, even though they are not automatically enforceable in court.
Since the 2010 case of Radmacher v. Granatino, unless it is unfair to hold the parties to the agreement, the court should give effect to a PNA that is freely entered into by each party with a full understanding of its implications. The following are the formalities that a PNA must adhere to:
Each party must disclose to the other sufficient information about their financial situation,
including any pre-existing and/or inherited wealth, and must respond to any reasonable inquiries the other may have (in practise, these inquiries are rarely made).
It must not attempt to contract out of responsibility for the financial needs of any children.
Before entering into a PNA, there should be no indication of duress, fraud, undue influence,
misrepresentation, or mistake, and each party should seek independent legal counsel.
It should also be signed at least 28 days before the wedding.
Nuptial agreements have grown in popularity as a result of this case because they offer a useful roadmap for figuring out how you want to organise your finances after you marry and a safety net in case things don't work out as you had hoped. It is always important to seek legal counsel if you have any doubts about whether a PNA is the best option for you and your partner because there will always be room for debate regarding whether the PNA should apply in the event of divorce. If you want to hire best family law solicitors manchester contact us.
MYTH 3: YOU WILL GET A BETTER FINANCIAL SETTLEMENT ON DIVORCE IF YOUR PARTNER CHEATED.
Unfortunately, it is still widely believed that if one spouse can be "blamed" for the divorce, the other will probably receive a higher share of the marital assets as compensation. Simply put, this is untrue.
In family court, the issues of divorce, finances, and child custody are all handled separately. There are no financial proceedings in which it matters why a couple got divorced. Instead, when deciding any financial settlement, the court makes sure that the family's assets are distributed fairly and that each party's "needs" and those of any children are met.
Additionally, the Divorce, Dissolution and Separation Act 2020 (the DDSA) was recently passed by the government to replace the previous system, which required couples seeking a divorce to persuade the court that their marriage had "irretrievably broken down." They had to provide one of the following five justifications:
1) unreasonable behaviour,
2) adultery,
3) desertion,
4) two years of separation with consent, or
5) five years of separation without the other party's consent. On April 6, 2022, a new "no-fault" divorce law went into effect that completely eliminated "blame" as a factor in divorce proceedings.
MYTH 4: ONCE THE DIVORCE IS COMPLETE, YOUR PARTNER NO LONGER HAS ANY CLAIM TO YOUR ASSETS.
As was already mentioned, family court deals with divorce, finances, and child custody issues separately. The divorce or separation only affects the marriage or civil partnership's legal status; it has nothing to do with the partners' respective financial entitlements.
Financial claims may remain open if a financial consent order is not created and approved by the court (either through court proceedings, attorneys (private FDR or mediation), or Arbitration; more information can be found here). This means that your spouse may file a financial claim years after the divorce was finalised. Hire best family law solicitors manchester at United Solicitors.
MYTH 5: IT’S A CUSTODY “BATTLE”.
While divorce and choosing custody arrangements for any children you have with your partner can be contentious issues, love is not one of them.
Parents going through divorce and separation are frequently pitted against one another using language indicative of a fight instead of how arrangements involving children should be handled, which is with cooperation and compassion. This is likely a symptom of TV, film, and tabloids.
Legally speaking, the term "custody" does not exist in England and Wales. Instead, "child arrangements" are how the Family Court refers to issues involving children of separated parents. Recognizing the detrimental impact that adversarial language has on parents going through divorce and separation, as well as on their children, family law professionals are moving away from it in favour of more inclusive and cooperative language.
While the adversarial nature of our current legal system does not help matters, there have been more and more campaigns for reform and requests from clients for more options outside of the courtroom. In order to help them work through problems cooperatively rather than in opposition to one another, parents now have access to a comprehensive range of support from therapists, mediators, and legal services.
For instance, parents are urged to place their children at the centre of discussions during mediation. Parents and mediators will talk about what they believe is best for their kids, how their daily lives have been so far, and what they think of the suggestions being made. It is the responsibility of mediators to take into account whether child inclusive mediation is necessary in particular situations. The children will meet with a specially trained mediator in this situation. The mediator's job is to ensure that the children have a voice and a presence in the sessions even if they are not directly involved in the mediation process by asking the adults questions about them and their potential feelings.
MYTH 6: SURROGACY IS NOT AN OPTION FOR COUPLES WANTING CHILDREN IN THE UK.
Contrary to popular belief, paying a surrogate is not illegal. However, paying a third party to negotiate a surrogacy agreement is against the law. This means that only agreements reached between the intended parents and the surrogate mother or those facilitated by a non-profit organisation are permitted to be made in the UK (so that it is not a commercial arrangement).
Additionally, under English law, you and your partner won't be the child's legal parents if you have a child via a surrogate. Despite having no genetic ties to the child, the surrogate is still considered the child's legal mother. Therefore, you must ask the court to issue a parental order that will terminate the surrogate mother's (and her husband or civil partner's) parental rights and obligations for your child and transfer those rights and obligations to you.
If your child was born as a result of an international surrogacy arrangement and English law does not recognise it, the situation may become more complicated. If you have an international surrogacy arrangement, there are also immigration implications, and you need to know what rights your child has to British citizenship and how they will be able to travel home.
It is best to seek advice as early as possible (more information here) so that you are aware of the legal requirements and the actions you must take both here and in the country where your child is born.
Family law is a crucial area of the law that protects the rights and obligations of each family member and addresses a wide range of issues, from divorce and separation to child custody and surrogacy. Even in situations that may appear straightforward, there are frequently intricate legal, financial, and emotional factors to take into account.
In order to protect your interests and navigate the legal system, it is crucial to seek legal counsel when dealing with family law issues. An experienced lawyer can also help you navigate the issues covered in this article with compassion and clarity. With legal counsel, you can take well-informed decisions, feel more at ease with the courtroom, and work to achieve the best result for you and your family. Visit United Solicitors, for best family law solicitors manchester.