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Dispelling Some Myths about Divorce Petition Adultery and Division of Assets

A common myth exists that parties have to wait two years before they can Petition for divorce. This is incorrect. As long as you have been married a year you can generally Petition immediately. The most common "fact" on which most people rely is their spouses unreasonable behaviour. When the marriage is working the other parties inevitable and irritating habits become "the facts" of unreasonable behaviour when the marriage breaks down.

The divorce procedure is relatively straightforward but if you have children or have assets to divide then it is worthwhile seeking advice from divorce solicitors. Quite often people who consult family law solicitors say that they wish to live apart but do not want a divorce immediately. There is no problem with that but, and in the law there is always a but, (a) you cannot have a fully binding final Order agreement with regard to matrimonial finances unless there has been a divorce; (b) no Pension Sharing Order can be made without there having been a divorce; (c) more generally if the marriage has broken down, it is better to start the process off than leave it as unfinished business.

There is only one ground for the divorce and that is that the marriage has broken down irretrievably but to prove the breakdown one of five facts has to be proven which are (a) your spouse has committed adultery and you find it intolerable to live with them; (b) your spouse has behaved in such a manner that you cannot reasonably be expected to live with them; (c) you have lived apart for two years and you both agree to there being a divorce; (d) there has been desertion for a period of more than two years; (e) you have lived apart for five years. Although you have to prove one of the five "facts", it is much easier to prove b to e than a. Husbands and wifes will agree to all kinds of unreasonable behaviour but they frequently baulk at adultery even when it is quite clear that adultery has taken place. Another Myth is that it is not adultery if you have separated from your spouse. Wrong.

Adultery is having sexual intercourse with someone who is not your spouse. If you have lived apart for five years and you are living with a new partner, you will be committing adultery with that new partner. Having said that, when it comes to the division of assets, the behaviour of one or other of the parties is never going to have much, if any, influence on the final outcome. In other words, committing adultery will not mean that you should expect less of the matrimonial assets than if you have just behaved unreasonably and likewise the fact that you were the one who is being divorced rather than applying for the divorce does not mean that this is going to affect the amount of assets that you will eventually receive.

There is also a myth is that it does not matter for deciding who gets the house whether or not you are married. Marriage makes a big difference. As divorce solicitors confirm, the court can give one or other party more or less of the house if you are married because it has a discretion. There is no discretion if you are unmarried.This article assumes you are married. Where there are children the Courts first priority has to be their welfare and naturally where they are going to live.

This gives the parent with whom the children are to live an advantage in some instances if they wish to stay in the former matrimonial home. Factors such as children being able to continue to attend the same schools, maintain their same friendships and have the benefit of family and other support in the locality are important. However, the main deciding factor will be the financial viability of retaining the house, balanced against the other parents need to obtain appropriate accommodation to enable the children to stay weekends, holidays etc, particularly if its possible for there to be shared care arrangement. It is a useful exercise to look at alternative accommodation within the same locality, or one adjacent where housing prices may be a little lower. The internet sites for local Estate Agents are a convenient way to research this and its also necessary to look at each parties potential borrowing capacity for a mortgage but more importantly the afford ability of paying back any money borrowed.Some Lenders will take Tax Credits into consideration and others will also base mortgage ability upon payments of child support, particularly if these can be confirmed in a Court Order because they are being made by Consent.

To succeed in an argument to either retain a property or from another perspective to persuade a Court that a property needs to be sold to release equity to both parents to rehouse are areas divorce solicitors are very familiar with and can advise you upon further. Separation and Divorce invariably mean change and change can be scary. Here at McAras we have the expertise and the knowledge to consider all possible options with you to ensure the best outcome possible for you and for your family.

Bob Wilkins is a matrimonial specialist at Mcaras Solicitors, Leeds. For more information and advice on separation, divorce and child disputes, visit Mcaras website at

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