Although divorce is a familiar topic in both public discourse and popular culture, there are significant misconceptions about how it actually works in practice in England and Wales. These misunderstandings can create confusion and unnecessary stress during an already challenging time. This article addresses some of the most common divorce myths and provides clarity on the legal realities of divorce and financial arrangements.
Written by Aurora Chan, Legal Assistant.
“I need to provide a reason to get divorced.”
This is no longer true. Previously, couples needed to provide grounds such as unreasonable behaviour or adultery, or otherwise wait for extended periods of separation. This often introduced blame and heightened conflict.
Since the new “no-fault” divorce law in the Divorce, Dissolution and Separation Act 2020 came into force on 6 April 2022, couples are no longer required to provide a reason. A divorce can now proceed based solely on a statement that the marriage has irretrievably broken down. This reform aims to reduce hostility and promote a more constructive and amicable process.
“The divorce process is quick and simple.”
While the process is now largely administrative and can be completed online, it is not particularly fast.
The court treats divorce as a serious matter and builds in time for the parties to reconcile and reconsider. Even in straightforward cases, the process can take 10 to 12 months from application to final order.
Although the minimum timeframe is around 26 weeks from the issue of the application, the process is often much longer due to court processing times or actions required from either party.
The key stages of the process are as follows:
- The applicant submits the divorce application to the court.
- The court issues the application and notifies the respondent. This can take several weeks.
- A 20-week reflection period begins from the issue of the application.
- The respondent must respond to the court and file an acknowledgement of service within this period.
- Once the 20 weeks have passed, the applicant can apply for the Conditional Order.
- A further waiting period of 6 weeks and 1 day applies.
- The applicant can then apply for the Final Order, which legally ends the marriage.
“Divorce proceedings will also resolve finances and children matters.”
Divorce proceedings deal only with the legal termination of the marriage. Financial settlements and arrangements for children are separate legal processes which must be applied for separately.
These matters can either be resolved by consent between the parties with final approval from the court, or through contentious court proceedings if an agreement cannot be reached. They will not be automatically dealt with by the court as part of the divorce.
“There is no need to formalise financial or children arrangements.”
Failing to formalise agreements can create significant risks. A court-approved order is legally binding and enforceable. Without this, either party can later disregard what was agreed or bring new claims or challenges.
Even if your relationship is currently amicable, formalising your agreements can provide certainty and prevent future disputes.
“My spouse cheated, so I will get more in the divorce.”
In the divorce process, as mentioned above, adultery is no longer a ground for divorce, so evidence of cheating will not be relevant.
In financial settlement proceedings, the conduct of the parties is rarely considered unless it is exceptionally serious and relevant. The court is reluctant to examine the detail of a couple’s marital relationship or spend time on dissecting evidence of conduct. The threshold is very high and ordinary marital misconduct, such as infidelity, is highly unlikely to impact financial outcomes.
“I earned all the money, so I should keep it.”
Upon divorce, the court will aim to achieve a fair division between the couple, regardless of each party’s contribution. Marriage is viewed as a partnership in England and Wales, so assets are treated as shared.
All assets belonging to both parties will be part of the “matrimonial pot” for division, no matter whose name they are in. Unless there are nuptial agreements or specific contracts or declarations which state otherwise, all assets will be subject to division.
The starting point is equal division of the matrimonial pot. There may be adjustments made based on factors like childcare responsibilities. The court will also ensure that the housing and financial needs of both parties and any children are met as far as possible.
However, the position can vary depending on the length of the marriage and the nature of the assets. Shorter marriages and assets clearly acquired before the marriage or after separation may be treated differently. A nuptial agreement, entered into before or during the marriage, can also help set out how assets should be treated on divorce, although the court retains the final say.
“My parents paid for the house, so my spouse will have no claim.”
If gifts or inheritance are used to purchase or contribute to the family home, or anything else which benefits both parties, they will often be treated as part of the matrimonial assets.
Whether such assets can be preserved as non-matrimonial property depends on how they have been used. Where they have been mixed with joint finances or applied to the family home, they are likely to be treated as part of the matrimonial pot. Even where they have been kept separate, the court can still draw on them if the parties’ needs cannot otherwise be met.
Nuptial agreements or careful ringfencing can help, but they are not a guarantee. For families wishing to protect inherited wealth or parental gifts, a properly drafted pre-nuptial or post-nuptial agreement is often the most effective starting point.
In practice, the court will consider the overall asset pool rather than individual items in isolation during financial division. The property does not necessarily need to be divided; if one party wants to keep it, the value of the property can be balanced out against other assets instead.
“My overseas assets will not be part of the financial settlement, so I do not need to disclose them.”
In financial proceedings, whether consented or contested, both parties are under a strict legal duty to provide full and frank disclosure of all assets worldwide. This includes all property, bank accounts, investments, pensions, trusts, business interests, and so on.
The court relies on complete transparency to determine a fair and just settlement based on all available resources belonging to both parties.
Failure to disclose assets, even if they are overseas assets, may result in cost penalties or the order being set aside.
“I can transfer my assets to others so they will not be divided.”
Once financial proceedings are underway or even just contemplated, both parties are expected to preserve the asset pool. Deliberately reducing or disposing of assets, for example by gifting, transferring, or selling them, can be seen as an attempt to defeat a fair settlement.
In contested proceedings, the court has wide powers to investigate transactions. If any improper dealing is found, they can order for transactions to be set aside or reversed or treat dissipated assets as still available for division.
Even in consented arrangements, if one party believes the disclosure is incomplete or misleading, they can request further disclosure privately or through a court application.
This applies even where there is no malicious intention. Transactions such as repaying family members, transferring property, or restructuring finances can all come under scrutiny if they materially affect the overall asset position. Therefore, you should avoid touching your assets at all until a court-approved agreement is in place.
“Pensions are not part of the financial settlement.”
Pensions are often one of the largest assets in a marriage, but they are frequently overlooked or misunderstood. They are part of the matrimonial pot and can be shared between the parties on divorce.
The court can deal with pensions in a number of ways, including pension sharing orders, which split a pension at the point of divorce, or offsetting, where one party keeps the pension and the other receives a larger share of other assets in return.
Pension valuations and the appropriate method of division often require specialist input, particularly where there are defined benefit schemes or pensions held overseas. Failing to address pensions properly can leave one party significantly worse off in retirement, even where the rest of the settlement appears balanced.
“I will have to pay maintenance for the rest of my life.”
Spousal maintenance is not automatic, and lifelong orders are now uncommon. The court’s general approach is to encourage a clean break wherever possible, so that both parties can move on financially.
Where ongoing maintenance is appropriate, it is usually for a fixed term to allow the receiving party time to adjust and become financially independent. The amount and length depend on factors such as the length of the marriage, the parties’ incomes and earning capacity, and the needs of any children.
Spousal maintenance also ends automatically if the receiving party remarries, and can be varied or stopped if circumstances change significantly. It is separate from child maintenance, which is generally calculated through the Child Maintenance Service.
“It is better if my spouse does not have legal representation.”
If your spouse does not have independent legal advice, they may not fully understand the legal process or the implications of any agreement. This can weaken the reliability of any settlement, as the court may later question whether it was entered into with full understanding and informed consent.
Lack of representation can also create practical difficulties, such as procedural errors, delays, and miscommunication during negotiations.
In contrast, where both parties are legally represented, the process is generally more efficient, with clearer negotiations and a reduced risk of disputes arising later.
How We Can Help
Divorce and financial arrangements can feel complex and daunting to navigate alone. We can provide clear and practical legal advice tailored to your circumstances to ensure that you understand your position without any misconceptions.
We can assist with:
- Advising on the divorce procedure and managing the application;
- Negotiating and drafting financial settlements;
- Advising on financial disclosure obligations;
- Assisting in contested financial proceedings;
- Advising on arrangements for children; and
- Drafting nuptial agreements to protect your assets.
Find out more here.
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