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