A client recently asked if they were automatically divorced after 2 years separation. This prompted further discussion within the office regarding common misconceptions. Here are some of those “myths”:-
We are common law husband/wife
It is a common belief that if a couple have lived together for a certain period of time that they are then treated as husband and wife. There is no such thing as a common law husband and wife. This can have great consequences in relation to financial matters as the claims that are available to unmarried couples are very limited.
We have to be separated for two years before we can issue divorce proceedings
Whilst this is one of the 5 grounds for divorce, it is not necessary to wait for two years. There are other grounds for divorce which would mean that you would not have to wait for the two year period to expire.
We want a “quickie” divorce
The press often refer to this when reporting on celebrity couples divorcing but in fact there is no such thing. A divorce based on any ground will usually take between 4 – 6 months if it is undefended.
It isn’t adultery if we have separated
If you are still married then a new relationship is still, strictly speaking, adultery although it may be argued that it is not the cause of the breakdown in the marriage. It is not possible to rely upon the fact of adultery if you have cohabited with your spouse for a period of 6 months since you became aware of the adultery having taken place.
I can’t get a divorce as my spouse won’t sign the papers
If you issue a divorce petition on the ground of two years separation then your spouse must give their consent and so they do need to sign the papers. However, if you are relying upon one of the other 4 facts of divorce you do not need their consent. It is necessary to show that the other party has received the divorce petition. As long as you do this you can proceed with the divorce without your spouse’s signature.
My divorce has been finalised and so everything is over
It is often the case that a solicitor will advise not to obtain the Decree Absolute of divorce until financial issues are resolved, usually by way of a court order. If the court do not make a final order which dismisses any future financial claims then it is possible that an application may be made in the future for a financial provision order.