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More divorce 'urban myths' busted

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More divorce urban myths busted

Myth: Can I divorce my spouse if they have committed adultery with a person of the same sex?

Busted! It is not possible to issue a divorce petition citing adultery as the reason for the marriage breakdown if your spouse is having an affair with a person of the same sex.  Adultery is defined in law as a heterosexual couple having sexual intercourse.  If your spouse has started a new relationship with another person of the same sex, it cannot be adultery for the purposes of divorce proceedings.  It can, however, be considered as an inappropriate relationship for the purposes of unreasonable behaviour petition.

Myth: If we have agreed how to divide our assets, do we need a solicitor to put it in writing?

Busted! The only way of guaranteeing that your financial claims against each other, arising from your marriage and subsequent separation, are legally binding is by way of an order being made within the divorce proceedings.  An order can be made by agreement or following a hearing before the Court.  If no legal advice was taken by the parties, and no financial disclosure exchanged between them, it is highly unlikely that that agreement would be considered binding by the Divorce Court.  In order to formally dismiss your financial claims against each other and in order to give your agreement legal effect, you should have a Court order filed within the divorce proceedings dismissing your claims.

Myth: If I receive a windfall during our marriage such as inheritance, a personal injury settlement etc. can this be ring fenced so that my spouse cannot make a claim against it?

Busted almost! Money received from a third party during the marriage would initially be classed as a non-matrimonial asset.  However, whether or not it can be ring fenced from division between the parties depends entirely on the circumstances of the parties at the time they divorce.  How any money received is treated throughout the marriage (such as was it placed into joint names?)  should be explored.  Importantly, “needs” trump everything.  Therefore, if there is not enough matrimonial money/equity to adequately provide for both parties, it is unlikely that non matrimonial property will be ring fenced, especially if there are children arising from the marriage.

Myth: Can I force my ex to do more for our children? 

Busted! A Court will always make contact orders based on what they consider to be in the best interests of the child/children.  A Court could make an order requiring the parent with care of the child/children to make them available for contact on a specific day and a specific time, and can enforce that order, if necessary.  What a Court cannot do is compel an absent parent to take up the offer of contact on a specific day or time.  If you feel that your spouse/former partner is not assisting enough with childcare obligations, you will need to have a discussion with that person. 

Hopefully, we have clarified some more urban myths for you.  If you should have any doubt about the legal position then please seek professional advice early on from the “myth busters” at Harrowells!

Our articles are intended for general information purposes only and are not a substitute for professional advice tailored to your specific circumstances. We are always very happy to discuss any plans, issues or concerns you may have and to clarify how we might be able to help. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.