Tabloid Myths

From time to time, the Media (and sometimes not just the tabloids) get it so wrong that we feel compelled to contact them and attempt to put it right. This is not always a rewarding or successful exercise and so we propose to use this space to correct some regular misconceptions or misrepresentations in every day press coverage or sitcoms.

The Common Law Wife

The first and most obvious is “the common law wife”. There is no such thing: not after two years (which seems to be a frequent misunderstanding); not at all. Under current law in England and Wales, if you are not married and you do not have some form of living together contract, your only rights and responsibilities towards each other fall under property law, if you own a home together, or claims on behalf of any children. This is the same if you have lived together for six months or 60 years and it can be heart breaking to have to have to give that advice to a mother who is not married to the father and whose name is not on the title deeds of the home they share. We will continue to campaign for the public to be better informed about the legal situation if they cohabit and are not married; and for heterosexual couples to be able to enter into civil partnerships.

It’s always 50:50

Our job would not be very interesting if this was true: we like to think that we are skilled to do more than add up the assets, deduct the liabilities and divided it by two. We sometimes summarise the recent case law to say that the starting point is equal division. In fact the starting point is always section 25 of the Matrimonial Causes Act 1973 which requires judges (and therefore us) to consider all the available assets and other resources, before considering how they should be apportioned between the separating couple in order to meet their respective needs and, most importantly, the needs of any children. The court must also take into account the standard of living enjoyed by the parties during the marriage, the ages of each party, any contributions either has made to the marriage and any financial changes that can reasonably be foreseen.

Having taken all of these issues into account, the judges arrive at a percentage split of the assets and must then apply the benchmark of equality. In other words if the section 25 exercise has led a judge to apportion the assets, for example two-thirds to the wife and one-third to the husband they must then explain why it is not an equal division.

So the short answer is, it is not always 50:50 but, if it isn’t, the departure from equality must be explained. An easy example would be the 20 year old beauty marrying the ageing rocker who has already made his fortune. If they divorce two years later she will not receive 50% of the wealth he built up prior to the marriage and, in our experience, there can often be reasons to depart from equality in order to meet the needs of both parties and to achieve fairness between them, taking into account all of the facts of their case.

The children always stay with their mother

Children cases are always difficult and we do not envy the judges who have to make Solomon like decisions and shape the future of the children whose parents cannot agree the arrangements for them. We used to be able to predict, with some certainty, that, save in exceptional cases, the children would remain with their mother. But then society used to be clearer-cut: the fathers went out to work and the mothers looked after the children. Families are not as traditional as they were and roles are not as delineated.

When Bob Geldof campaigned on this issue and argued that children should divide their time equally between their parents’ homes, many dismissed his ideas as popstar fantasy, perhaps achievable for millionaires with nannies and chauffeurs but not realistic for the average working family. He is an effective campaigner and his vision for modern families came close to being enshrined in law. The Government considered making the starting point for the arrangements for children, that they divide their time equally between their parents’ two homes but in the end shied away from the concept of equal division.

On balance we agree: the principle of looking at each case without prior assumption or political agenda must be right but it does mean that each judge can exercise his or her discretion based, inevitably, on their personal experience and perhaps even prejudice.

The judges must follow a welfare checklist laid down in law and must make the decision that they consider to be in the best interests of the children. This law must be sacred but it can sometimes leave, particularly a father, feeling that judges are still more inclined to give the majority of children’s time to the mother. As society continues to evolve and children spend increasing amounts of time with their father; so should the law reflect these changes.