The Bates Blog 

'There is no such thing as a Common Law Wife'- and more Matrimonial Myths.... 

Dinner parties have a lot to answer for.......Why? Because they can be the perfect forum for exaggerations, speculations and misconceptions, particularly when it comes to relationships.....marriage.....and divorce!

During the course of my practice, I have encountered many poor souls who, courtesy of a well meaning dinner companion, have heard with increasing anxiety of the horrors they face when embarking upon a divorce.  It’s no wonder that when they arrive at the office, they are more than a little apprehensive as to what is about to befall them!

Divorce is complex. There are no hard and fast rules to decide exactly who gets what and a client will often find themselves in a state of uncertainty and emotion.  Each case is different and so it serves a client well not to listen to the conjectures of their blurry eyed dinner companion and instead to consult a Solicitor at the first opportunity so that they are well versed in the facts.

Listed below are five things you may hear at a dinner party.....and then the truth!

1.  'If you live with her for two years, she becomes your common law Wife...'

There is no such thing as a common law wife.  You can either cohabit with your partner, or marry them.  If you marry them, they become your Wife (or Husband). At that stage, they obtain rights under the Matrimonial Causes Act 1973...it really is that simple!  It therefore follows that if you choose to cohabit, you will not have the same rights as a spouse upon Divorce.  

The misconception arises from the fact that a cohabite can, after you have lived together for two years, make a claim against your Estate under the Inheritance (Provision for Family and Dependents) Act 1973.

2. 'If you move out of the matrimonial home.......you relinquish all rights you have in it'

This is not correct.  Whilst you are married you are both entitled to live in the property.  If you choose to move out you do not relinquish any rights in the property which you may have under the Matrimonial Causes Act 1973, even if it is not held in your name.  You should be aware that if the property is not in your name, then a Notice should be registered against the property to protect your interest in it.

3. 'You should have had a Pre-Nuptial Agreement.....they are legally binding now'

Pre-Nuptial Agreements have certainly become more popular over the years, particularly with the well publicised case of Radmacher v Granatino.  It is also true to say that the Courts will now take them into account in some circumstances but they are not bound to do so.

Pre-Nuptials are effective where legal advice has been obtained by both parties and financial disclosure made. The agreement must also have been entered into at least a month before the marriage and most importantly, it must be a fair agreement.  If your circumstances have changed significantly since entering into the Agreement i.e. the birth of children, then the Agreement is less likely to be effective.

4.    'You can base your divorce Petition on irreconcilable differences'

Irreconcilable differences, is not in itself a ground for divorce. In order to obtain a divorce, you must be able to demonstrate to the Court that your marriage has irretrievably broken down, as evidenced by one of five grounds;-

i.   Adultery

ii.  Unreasonable Behaviour

iii. Desertion

iv. Two year separation

v.  Five year separation  

5.  'It’s not adultery if the relationship started after you separated'

Unfortunately not...adultery is adultery, whether you’re married or separated, right up until the point when your marriage is dissolved.

Get in touch with Rachel.