Divorce Mythology

Until you come to get divorced, matrimonial law is a mystery. When your marriage does breakdown it can seem like a dangerous world of expensive lawyers and unfair rules. It is true to say that divorces can be expensive, and the outcome often feels unfair, but there are popular misconceptions and myths that can be busted:

MYTH – Children always go to live with mum.
Arrangements for children vary widely, the important thing is that they work for your family and that they are in the best interests of your children. Increasingly, children are spending a lot of time with both of their parents. When you separate or divorce, try to agree a parenting plan that enables both of you to be an important part of your children’s lives. If you are struggling, consider family mediation.

MYTH – You only pay child maintenance when you see your children
Contact with children, and the maintenance paid to help support them, are entirely separate legal issues. Even if you do not see your children, you should be helping financially. Having said that, the court will be keen to help you to establish contact, provided it is safe.

MYTH – People who have had affairs will be, ‘taken to the cleaners’ by their spouses.
Although adultery is still a ground for divorce in Jersey (even if you start a new relationship after the breakdown of your marriage!) the family court very rarely punishes people financially because of their life choices, or even because of their poor behaviour. For the court to be influenced in any way by allegations of poor conduct the behaviour has to be “gross and obvious” which is legal speak for really, really bad.

MYTH – You can be a ‘common law’ spouse.
Some people believe that if you live together for a few years you become a common law spouse and have an entitlement to their assets on separation. That is not the case. Parents of children can bring some financial claims against the other parent but, aside from that, cohabitees have relatively little legal protection if their relationships break down. It is wise to take advice and consider a cohabitation agreement if you want to try to avoid nasty surprises.

MYTH – Prenuptial agreements are binding
No. A court is likely to give considerable weight to a well drafted agreement, and may decide to enforce it but, as the law stands, only a Judge can draw a final line under an agreement between spouses.

MYTH – Assets are always split down the middle on divorce.
There is no room for discrimination in family cases, and the court accepts that a breadwinner and a homemaker make equal contributions to a marriage. However, that does not mean that the Judge will always split the pot down the middle. In some cases, that does work. In others, particularly where there are young children, one spouse will need more than half of the available assets to be ok.

Don’t guess at what the rules are – and DON’T rely on the internet. Take advice.

Advocate Claire Davies
This article first appeared in Connect February 2020

‘til death do us part? Spousal maintenance on divorce

There are still people who believe that if they just maintain separate bank accounts, and keep their house in their sole name – their spouse will not be able to claim a share of their assets. They are wrong. There are also people who think that their business assets and pensions are untouchable on divorce. They are wrong too. Divorce can bring nasty surprises for anyone, but it is often the prospect of paying spousal maintenance that feels the most unfair to breadwinners.

When you divorce, a court has the power to order one spouse to pay an income to the other. This tends to happen where one spouse has a significantly higher income than the other, but that is not always the case. Spousal maintenance payments may be ordered whether or not you have children and they can continue, in theory, until one of you dies. They are generally index linked and can be subject to an upward (or downward) review if your circumstances change. Payments can even be secured on property. In Jersey, even if your former spouse cohabits or remarries that may not automatically bring an end to spousal maintenance payments. The purpose of spousal maintenance is to enable former spouses to meet their reasonable needs, and in a high earning family ‘reasonable needs’ may mean a very nice standard of living indeed. It is scary stuff.

Most people – judges included – see the benefit of achieving a clean break. That is a settlement which draws a line under the financial relationship between former spouses with no ongoing spousal maintenance payments made by either party. To make this possible the court may award more of the assets to the financially weaker party and/or order the other party to pay a cash lump sum to them. The idea is that this additional injection of capital reduces the income needs of the receiving spouse and it may then be possible for them to make ends meet without additional help. Perhaps most importantly, it provides peace of mind and allows people to get on with their lives. Unfortunately, there isn’t always enough money to make this possible.

Is spousal maintenance fair? Homemakers who are caring for young children may not be able to earn enough to have a reasonable standard of living, even if they keep more of the available capital. Even where children are older, spouses who have sacrificed time from their careers to raise a family are likely to be at a significant handicap on the job market. In these days of equality, parents raising children are expected to make their way back into work once their children are older and it is now more common to have spousal maintenance paid for a fixed term so that the person receiving payments can ease their way back into independent living without undue hardship. But, with a high cost of living and very expensive housing costs spousal maintenance is sometimes unavoidable in Jersey.

Advocate Claire Davies
This article first appeared in Connect September 2019