Much is written about the first Monday back in January after the festive break. It has even been named ‘National Divorce Day’ by the media, representing the alleged enormous numbers of people calling a divorce lawyer after a stressful Christmas break. I am often asked if ‘divorce day’ is real. My experience is that it’s more fictitious than some quarters of the media would like us to believe!

Yes, January can be a busy month, but that is more a reflection of December being a short month and most solicitors’ offices closing on Christmas eve until 2 Jan. It is crucial to bear in mind that divorce is rarely a response to one difficult holiday or incident. I may speak to someone three or four times before I am instructed to start the divorce process. This reflects what is often an incredibly difficult decision to bring a marriage to an end.

Often, a combination of misinformation and stress can lead to my first role to involve plenty of myth busting. Below, are the top five dilemmas I tend to find myself unpicking:

1. ‘The Children Are Still At School, So I Should Keep The House’

This is one of the most common and challenging conundrums clients and the courts regularly face. The matrimonial home can be the most valuable asset in a divorce. Every case is different, but in most cases it has to be sold to release equity. That doesn’t mean that either party is left homeless, but it does mean that the standard of living may have to change and downsizing in a similar location is unavoidable.

2. ‘I Contributed More So I Should Get More Of The Matrimonial Assets’

Although an unequal division of assets can be agreed, it’s unlikely to be ordered by a court, unless there are circumstances where needs justify. Whether a homemaker or in full time employment, within marriage both contributions are viewed as equal. An equal division of matrimonial assets is usually the starting position unless there is a pre or post nuptial agreement stating otherwise.

3. ‘Pre And Post Nuptial Agreements Aren’t Worth The Paper They Are Written On In This Country’

This is not correct. Pre and post nuptial agreements, drafted properly, and entered in to in good time before a marriage or during the marriage, with legal advice, will be considered highly persuasive by the courts if there is a dispute later. They may not be contractually binding, but they will be a highly influential factor in considering how the assets should be divided on divorce.

4. ‘The Children’s Care Will Be Divided 50/50’

Most parents can and should be able to agree what is in their children’s best interests. The welfare of the children should always be the main concern and that may not always reflect an equal division of time with each parent. If the court becomes involved, it will consider a child’s needs, age and understanding, along with any welfare concerns. It may be that one parent is defined as the primary carer and the other has regular contact. This doesn’t affect parental responsibility as this remains shared equally.

5. ‘I Have Rights As A Common Law Spouse’

There is no common law marriage in England and Wales. If a property is owned jointly, an unmarried couple may have property rights and if there are children, there may be claims for the benefit of the children. But there are no matrimonial rights unless the parties are or have been married.