5 Common misconceptions about divorce and separation in England and Wales

This article highlights and addresses five of the most common myths about divorce and explains the legal position in England and Wales.

1. "Everything is Divided Equally (50/50 split)"

Some assume that all assets are divided equally following a divorce. While an equal division of assets can sometimes be appropriate, there is no automatic rule or law that everything will always be split on a 50/50 basis. Instead, the court considers each case based on its own individual facts and aims to reach a fair outcome in the best interest of both parties and any children.

When deciding financial matters, the court will consider a range of factors, including the duration of the marriage, each party's financial resources, contributions made during the marriage and the welfare of any children. Therefore, the outcome will depend on the individual circumstances. So, just because a friend that got divorced had one outcome, doesn’t mean that will be the same outcome in your case.

2. "My spouse caused the divorce so I should get more"

Since 2022, there is no longer need to prove the reason for the breakdown of the marriage. When considering how financial assets should be shared, it is in only very limited circumstances that one spouse will receive more financial assets due to the conduct of the other spouse.

3. "Mothers ALWAYS have greater rights over the children"

There is a common misconception that mothers are more likely to be granted primary care of the children simply because they are the child's mother. However, this is not how the law operates. The court's main consideration is the child's welfare and not the gender of either parent.

Where parents cannot reach an agreement on child arrangements, the court applies a welfare checklist in accordance with the Children Act 1989. This includes considering the child's wishes and feelings where it is appropriate to do so, the likely effect on them if there was to be a change in circumstances, their physical and emotional needs as well as each parent's ability to meet those needs.

The law also recognises that, unless there is evidence to suggest that doing so would place the child at risk of harm, the involvement of both parent's in a child's life will generally have a positive impact on the child's welfare. However, this does not mean that the court will automatically order equal time with each parent. Instead, it will carefully consider the individual circumstances of each family and make decisions based on what is in the child's or children's best interest.

4. "Every divorce ends up in high legal fees and stressful court proceedings"

Contrary to popular belief, not every divorce results in high legal costs and lengthy court proceedings. In a lot of cases, couples are able to reach agreements between themselves and solicitors are only required to help ensure that any financial agreement is legally enforceable and financial ties between the couple are severed.

When disagreements do arise, parties are encouraged to explore alternatives such as family mediation.

Court proceedings are generally considered to be the last resort and are usually only necessary when an agreement cannot be reached by both parties.

5. "Divorce automatically resolves financial matters"

Yes, finalising a divorce legally ends the marriage; however it does not automatically resolve financial claims between the former spouses. Financial matters should always be dealt with separately and, where agreement is reached, it is imperative to record this in a financial consent order approved by the court. Without a legally binding financial order, some financial claims may remain open even after the divorce itself has been finalised. Therefore, it can certainly be said that obtaining legal advice can help ensure that financial arrangements provide certainty for both parties.

The legal process surrounding divorce has changed significantly in recent years, yet many outdated myths continue to exist. By taking advice to understand how the law actually operates, individuals can make informed decisions about their future and avoid uncertainty and disappointment.