VANESSA FOX: Love, marriage and legal myths
AThere are lots of popular 'urban myths' about love, marriage, divorce and living together – not least of which are the supposed rights of a 'common law wife', the recognition of pre-nuptial agreements and the idea that in order to obtain a divorce you have to go to court.
But before we look into these it's worth having an update on the divorce rate, as another myth is that this is getting higher year on year. Not so.
The divorce rate in 2007 was the lowest since 1981.
The reasons for this are varied and include the impact of the credit crunch, with couples not wanting the expenses of separating and the possibility of having to sell property to divide assets at a time when the market value is low.
There may also be the reluctance to go it alone in this financial climate.
More couples are also deciding not to tie the knot in the first place.
When they do the 'twenty-somethings' have the highest divorce rate – although a rise has been seen in older couples seeking a divorce, once the children have flown the nest.
To put this into perspective though at the turn of the last century there were only 512 divorces in England and Wales – in the year 2000 there were over 140,000!
There has also been a rise in people making pre-nuptial agreements – an interesting statistic as they have no legal standing in the divorce courts in the UK.
This type of agreement, which consists primarily of a written contract that indicates how assets would be distributed or retained in the event of a divorce, is more commonly used in America and has gained much publicity through celebrity divorce cases.
Over here the divorce courts have the final word and would not consider any agreement that was in any way unreasonable to either party or affected adversely the rights and wellbeing of any children involved.
However, the English courts seem in the last couple of years to be growing to accept that agreements entered into with independent legal advice for both parties are important and relevant information for a court which is dividing the assets on divorce.
The choice of whether to get a pre-nup should be a personal one between the two individuals involved just like any other job on the wedding to-do list. What's worth remembering, however, is that pre-nups can be a way to limit the inevitable distress should things go wrong.
Whether the strict legal situation will change in the future is up for debate and depends in part on the value of the agreements in making divorce proceedings shorter and simpler.
The case for agreements made between unmarried couples as we shall see is quite different.
The 'common law wife' is not an unfamiliar character in fiction and that's exactly what the title is – fiction.
In law there is no such thing as a 'common law wife' and therefore no security or entitlements attached to the name that has become such a part of our popular culture.
This fact leaves people seriously limited in terms of their legal remedy if the relationship breaks down.
It leads to costs building up and often long and difficult arguments about who contributed what and what each partner should have.
It is better by far to enter into a cohabitation agreement when you move in with your partner and decide up front who will own what and what will happen if you have children.
The agreement is not conclusive however and the courts do have discretion to look beyond the agreement, particularly if it does not take into account the birth of children.
Nevertheless it is very useful to a court when asked to decide what the two partners to a relationship intended at the beginning of their cohabitation.
Last but not least, for those who have decided to divorce and would like to choose a path that avoids the divorce courts, the collaborative method of resolving disputes are a real option.
This system helps couples to resolve their issues, with the help of a
legal representative each, through a series of meetings and agreements.
The song does say that love is lovelier the second time around.
Sadly statistics show that this isn't the always the case either.
In 2007 the proportion of people divorcing after a second marriage doubled.
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Wednesday 08 February 2012
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