Common misconceptions about family law, divorce and the marital home

30 November 2012

The client had been married for a long time but had amicably separated from her husband a couple of years previously. Between them they had agreed how their assets should be split. The wife had paid the husband a capital sum and in return he had transferred his share of the former marital home to the wife. The deeds of the property had been transferred into the wife's sole name and she continued to live there. The wife now wanted to start divorce proceedings. Joanna advised on the importance of obtaining a final order from the court, within the divorce proceedings, dealing with the couple's assets, to include a Clean break clause which has the effect of dismissing financial claims by the couple against each other in the future. The wife had wrongly believed that because the deeds of the house had already been transferred into her name that the husband could not bring any further claims against her. This is a popular misconception. Unless and until the court has formally made an order dismissing financial claims and creating the all important "clean break", there is always a risk that a spouse could seek to make a further claim, particularly if his circumstances suddenly change such as facing redundancy or long term ill health.

Joanna also advised that simply obtaining a divorce and achieving a Decree Absolute of divorce was not enough to protect against a future claim by a former spouse. Joanna emphasised that unless the court had made an order dismissing all financial claims, there remained a risk that a former spouse could seek an increased sum despite the agreement that the couple had previously reached. This is particularly so if no legal advice had been obtained. The wife may have remarried, received a substantial inheritance or won the lottery – all events which could prompt the former husband to seek further financial provision. 

The client was also unaware that following a lengthy marriage she might be entitled to claim maintenance for herself quite apart from any maintenance for her children. 

Joanna commented "throughout my career I have met several clients who have mistakenly believed that their home is safe from any further financial claim simply because the deeds are registered in their sole name whether before or following their separation. This highlights the importance of seeking legal advice preferably at the time of a contemplated separation so as to avoid costly errors in the future. I urge anyone whose relationship or marriage is breaking down to take advantage of the initial free advice session we offer to everyone, so as to be better informed about how the law may affect you. We tailor our advice to your particular situation. We can advise on the steps you need to take to avoid risks and to give yourself peace of mind for the future". 

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