5 Things You Should Know about Family Law — Tips on How to Deal with Them
Understanding the law itself is really tough. So with this in mind, we have thought of pulling off the following things to ditch in terms of family law myths and how you can go about each. Read on and get the right education you need — taken lightly point by point through situational or experiential examples.
In cases when the couple needs to be legally separated, the children will most probably stay with the mother
While it may appear that this is the case, the Court is only guided by what is in the best interest of the child. The use of a shared care arrangement is becoming more frequently used if it is practical and not disruptive for the child. Basically, the general principle is that the Court will firstly look at who has been the primary carer for the children.
If the other party has committed adultery, it will affect the financial outcome.
The ‘fault’ cited in the divorce is of no relevance to the finances. The Court has to consider both parties needs irrespective of fault. The only fault that is of relevance in financial matters is if it is directly linked to the financial matters (e.g. gambling, reckless spending).
“The father of my child and I were never married but his name is on the birth certificate so he is legally the father”
There is a presumption that your spouse is the father of your child if the child was born during the marriage. However, if a child was born out of wedlock, paternity is only established by DNA testing or execution of an affidavit acknowledgment paternity by the father.
Merely placing the father on the birth certificate does not establish that he is the legal father. This means that he has no legal rights to the child and unless paternity is established by appropriate means, child support cannot be collected from him and other rights of inheritance for the child are not available.
Although having the father’s name on the birth certificate does not convey paternity, it may be used to aid in the presumption of paternity when trying to prove it is so.
“We are not married but we are living together and so I have rights as a common law wife”
This is perhaps one of the biggest myths in family law. According to a poll conducted in 2008 by Parliament, around 51% of people believed in this concept. If you are not married, you do not have automatic financial rights. Any rights are limited to the laws of property and trusts.
In fact, there is some protection for those with children. The courts can make orders to preserve the home in some cases until the children have finished full-time education. The best way to protect your interest is to have joint ownership and/or a cohabitation agreement.
“We are married and therefore I am entitled to half of everything”
While the starting point in cases is equality, the court looks a number of factors when deciding how the assets should be divided. The most decisive factor in most modest cases is the needs of the parties, especially the needs of the children. And in cases where the assets exceed the needs, the court aims for fairness and therefore it may place more weight on other factors such as the length of the marriage, contributions made etc.
“If I transfer assets to a third party, the Court will ignore them”
This is not the case and the Court can either make an order for these to be transferred back to the spouse or ‘add them back in’ to the pot so that any order reflects the fact that the transferor of that asset has already had that money.
The transfers are likely to become common knowledge as both parties will have to provide the other with full disclosure of their financial documentation which includes bank statements and solicitors will pick up on unusual transactions in this documentation. The Court is likely to take a dim view of a party that has tried to conceal assets.
“If my spouse has racked up huge amounts of debt, I am liable for half of this”
The contractual position is that despite being married the debt is personal and therefore only attaches to the person who has the contract with the creditor (unless you are guarantor). The repayments are therefore the responsibility of the spouse whose name they are in and if there are missed payments it should only affect their credit.
However, there is always a concern if the debts have become unmanageable as a bankrupt spouse will cause problems for you and debts being secured on the other spouses share of the property could cause the home to be at risk.
The matrimonial courts can look beyond the contractual liability and sometimes will consider the debt to be joint when considering the finances if both parties have benefitted from the debt.
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