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8 things you need to know about divorce

PUBLISHED: 10:16 02 March 2017 | UPDATED: 10:16 02 March 2017

Getty Images/iStockphoto/NLshop

Getty Images/iStockphoto/NLshop

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Going through divorce, we turn to friends and family for guidance. But how do we know what information is correct and what is myth? Marilyn Bell of St Albans solicitors SA Law dispels eight common misconceptions about divorce

1 The Common Law wife

Many people think if a woman has lived with a man for a long time, particularly if they have children together, that she has legal rights. This isn’t true. Partners have rights to property only if it is jointly owned, and may have rights if they have contributed to it financially.

2 Grandparent rights

This is much harder than you might think. It is possible for grandparents to seek permission to see their grandchildren, but they have to convince a court they have a good chance of succeeding even to be granted permission to apply. Unless one parent has died or disappeared, the law generally expects grandparents to see their grandchildren when the children stay with each parent.

3 The one-year rule

A man or woman who has been separated from a former partner for over a year therefore cannot commit adultery. Not so. Even if the marriage breakdown was not that person’s fault or decision, to have sex with another person is still considered adultery until the divorce is finalised with Decree Absolute.

4 Pension protection

An ex can’t claim from a former partner’s pension. Again, not true. A pension is usually a matrimonial asset. This applies even if someone is receiving income from that pension.

5 Inheritance can’t be claimed

The lawyer’s answer has to be ‘it depends’. A court divides matrimonial assets and if there is sufficient to house both parties fairly, inheritance may not be touched. That is unless inheritance has been ‘used’ – to pay off a mortgage for example, It is then considered part of the matrimonial finances to be divided between both parties.

6 One-claim rule

If a person is divorced it is not possible for the ex to claim more money. This is not the case. Divorce does not prevent a financial claim unless there is a court order that states a settlement is full and final and there are no further claims. This can be a pitfall for anyone undertaking an online divorce.

7 Mothers always get the children

This is no longer the case. Courts are very supportive of both parents playing an active role in their children’s lives. They consider what is in the best interest of the children, particularly when considering term-time arrangements and schooling. Fathers are often surprised they are granted term-time visits and half of all school holidays and half terms.

8 Maintenance is forever

Paying maintenance to a former partner for the rest of his or her life was a real possibility not too long ago. Courts now look at what period of time is needed for the weaker financial party to become financially independent.

Every divorce is different, so there is no one-size-fits-all-approach. Both parties should seek expert legal advice to get the best outcome.

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