Divorce and separation seems to be one of those areas where everyone thinks they know their rights and those of everyone else involved.
Whether it is how much a partner will get in any financial settlement, how much child "maintenance" an absent parent will have to pay, who gets "custody" of the children, or the intricacies of the legendary commonlaw partner, friends, family and colleagues are always ready to wade in with "helpful" advice. But the fact is that that family law is complicated and it is practically impossible for someone to get a satisfactory outcome from a divorce without expert legal advice.
Even if your best friend, brother or next door neighbour has been through a divorce themselves, every case is different, so a family law specialist must be called on for advice and to look at the individual circumstances to assess the best approach.
Common in law?
As mentioned above, the phrase "commonlaw" is one that many people throw around when talking about unmarried couples. The widespread misapprehension is that if a couple have lived together for a certain amount of time, they are considered to be commonlaw man and wife and so have entitlements and claims on each other's possessions. This is simply not the case.
Only when a couple get legally married - or a same sex couple enters into a civil partnership - does the union automatically have legal implications.
The exception to this is if a couple draw up a living together agreement, detailing what each of them has and how they would want things to be arranged in the event of them splitting. These are increasingly important and couples are finding them essential to deal up-front with issues that may arise later like, for instance, who owns what, what happens to the finances and parental responsibility surrounding any children.
No one "gets custody"
Custody and access no longer exist in legal terms. The court can no longer award custody of children to either parent. So for someone to suggest that an individual (probably the father) will not get custody if a couple divorce is a redundant statement.
Instead the court has the power to make certain orders which may affect where the children live, how frequently an absent parent sees them, and so on.
Court orders will only need to be used if an estranged couple cannot agree between themselves. A residence order says where a child should live. In rare circumstances the court can make an order in favour of more than one person, stipulating how much time the child should spend with each.
A contact order regulates telephone calls, visits, weekends or holidays with the absent parent. A family lawyer can arrange this, but wherever possible a couple is encouraged to agree on their own terms as such orders can ultimately be difficult to enforce.
Since the introduction of the Child Support Agency (CSA) in the early 1990s, the courts have had no general power to deal with maintenance for children. They can now only make maintenance orders for children in a very limited number of special cases, such as when both parents apply to the court for an 'order by consent', where there are school fees to pay and a child is in full-time education, or when a child is disabled and there are care costs, for example.
So if anyone claims they are going to court to get maintenance or "to take them to the cleaners", you might want to suggest that such a situation is unlikely and they should seek the input of an experienced family law specialist.
The CSA deals with payments to help support the children. It will make an assessment based on the information given and will chase in the event of a default.
Where a lawyer can help in this situation is to expertly assess an individual's personal circumstance and advise a client whether to make an application to the courts, or leave things to the CSA. This advice should be sought as early as possible in the divorce process, so that a person can make the right decision for their children.
Another common myth is that a father always has rights in relation to their children. This is certainly true of married fathers and unmarried fathers of children born after 1 December 2003, provided they are named on the birth certificate. But others, including step-parents, don't automatically have such rights. Any of your clients who are unmarried fathers or step-parents may need to apply for parental responsibility. This will give them the power to make certain legal decisions without the express consent of the other partner, for instance in a medical emergency.
These are just some of the more common myths we hear, but there are many more gems that people trot out which bear little or no resemblance to current law.
Some might have been true once. Others have never been right. The reality is that some of the distinctions highlighted here may not be true this time next year. Only by taking the advice of a family law professional can a client be sure they are getting the right advice.
Speak to a specialist in family law if you need advice with any of these areas.