This is the second of two posts I have written about a number of very common myths and misperceptions that arise out of divorce cases:-
My husband/wife has wealthy parents so I want to claim against his/her inheritance
This is a classic example of how there are many grey areas in divorces. Often one party to the marriage will be eying up their estranged spouses’ inheritance prospects when negotiating a financial settlement. Putting it bluntly, the court will only divide up what it can see on paper so the starting point has to be if there is no actual inheritance then it cannot be touched. There could be a family falling out leading to wills being changed.
However pragmatism does come into divorce finance work and one of the factors a court will take into consideration is someone’s financial resources. You often may find someone trying to argue that a guaranteed capital payment which will be received in the short term cannot be ignored when finalising the matrimonial finances. Whilst inheritances received after the marriage has broken down are likely to be treated as non-matrimonial property the law does allow the family courts to take such property into consideration if it is necessary to achieve a fair result and outcome. Either way there is no guaranteed outcome here, and I have argued both sides successfully in the past.
I have paid the mortgage and all the bills on the house so I am entitled to more when I get divorced?
This is a very tricky area that people often struggle to understand. In deciding what is fair the family court can take into account contributions that have been made by either party. Financial contributions towards housing costs and outgoings stand out as being a significant contribution towards married life. However what was the reason that only one party paid these bills? More often than not the other spouse may have worked part time or not worked at all because they needed to spend time at home to bring up and look after the children of the family.
The Court of Appeal and Supreme Court have decided time and time again that such a non-financial contribution is every bit as important as the financial contribution the payer has made. This “score draw” underlines the way the law regards marriages as partnerships and how there is a “yardstick” of equality as a starting point.
Sometimes there can be a situation where there are no dependent children at all, one person remains in the marital home paying all the outgoings – should credit be given then? When it comes to mortgage payments you can sometimes find capital payments get taken into account, but the court will attach a significant weight to the fact that the payer has had sole occupation of the family home at the expense of the other party. This often causes a significant disgruntlement if the other party is not contributing towards their joint mortgage obligation out of spite.
I have lived with my partner for years – can I claim against their pension?
Pensions can be divided and shared between spouses on a divorce, and this has been the case for a number of years now. A pension is an asset of the marriage and capable of being transferred. The court will take into account the extent to which the pension was accrued during the marriage and there are many other considerations that come into play when considering what should happen to them.
However (and the clue is in the question) where there is an unmarried couple who separate, then no claims against pensions can be made – there is simply no legal mechanism to divide up a pension between co-habiting couples. This is one of many examples (spousal maintenance being another) of where the law treats married couples totally differently to unmarried couples. There is no such thing as a “common law marriage” in England and Wales.
If I make my husband/wife sign a pre-nuptial agreement then my property is safe
The starting point here is that the discretion of the family court to divide up property on a divorce is absolute, and cannot be fettered. Any document purporting to replace the ability of the court to share assets historically was not legally binding and had persuasive properties only. Pre-nuptial agreements have however become very popular in recent years and often people will want to take these out to try and ring fence family wealth in the event the marriage breaks down.
Nowadays since a landmark judgment in the Supreme Court in 2010 pre-nuptial agreements will be enforced by the Court unless it can be shown that the document or parts of it produce an unfair outcome (and the effect on any children tends to be highly relevant here), or the manner in which it was produced was unfair (for instance it was signed under duress, at very short notice, fraudulently etc).
The topics I have talked about in these two blog posts barely scratch the surface of what is involved, and there are many other misconceptions that may have to wait for another day. If anyone does wish to have a chat about divorce or separation issues then you are more than welcome to come in to see us for an appointment. Please call us on 0121 233 2042 or email me on firstname.lastname@example.org