Legal Misconceptions | How Well
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Family Law Misconceptions

Is a Common Law Marriage Real? 

There is a common misconception that “common law marriage” is a real thing. In actual fact, a common law marriage does not exist in the law in England and Wales. You can either be married or in a civil partnership. 

Is My Wife Automatically Entitled to Half of Everything in the UK?

Your wife is not automatically entitled to half of everything you own in a divorce settlement. However, in the UK, the courts try to reach a 50/50 split or the fairest possible outcome in the circumstances. Each situation is different and it may be that in some cases, an equal split is not fair. How the assets are divided is dependent on a number of factors such as the income each person earns, the standard of living each person is used to, the earning potential of both parties, and the financial responsibilities they have.  

Does It Matter Who Files for Divorce First in the UK?

Since the no-fault divorce was introduced in April 2022, it now doesn’t make much difference who petitions or files for divorce first in England and Wales. This is because if one person does not agree with the divorce, the other person can no longer contest it, unless they can give legal reasons such as the marriage was never legal in the first place. Applications for no-fault divorce can be made jointly by both partners if they both agree that the relationship has irretrievably broken down. Alternatively, one person can make an application for divorce on their own even if the other person does not agree.

Do Courts Always Give Custody to Mothers?

No, the courts do not always give custody to mothers, this is a common misconception. When the court considers child custody or child arrangements, as it is legally known, they will take into account the role of each parent in the child’s life. If for instance one parent takes the child to school, picks them up, feeds them, and generally tends to their every need whilst the other parent works, the court is likely to decide that it is in the best interests of the child to live with the primary carer. The court will look at how each parent can meet the needs of their child and then determine how best to make child arrangements based on this. 

Do You Have to Cite a Reason for Divorce?

No, you do not have to cite a reason to get divorced. In the past, you had to provide a reason why you wanted to petition for divorce, such as unreasonable behaviour, adultery, or desertion. Now, the only ground that you need to confirm is that the relationship has “irretrievably broken down” which means that you have broken up permanently.

What Is It Called When You Live Together but Are Not Married?

If you live together but you are not married and not in a civil partnership, then you are a cohabiting couple. A common misconception is that those living together but who are not married are called “common law partners” but there is no such thing as common law partners or common law marriage in England and Wales. 

If you would like further advice from our specialist family law solicitors, please contact us on info@lyonsbowe.co.uk 

Lasting Power of Attorney Misconceptions 

Can You Get Power of Attorney for Someone Without Capacity?

No, you cannot get a Lasting Power of Attorney (LPA) for someone who lacks mental capacity. If someone does not have mental capacity, meaning they have an impairment of their mind or brain which affects their ability to make decisions for themself, then the Court of Protection will intervene and make decisions on their behalf regarding their finances and property, health, and welfare. 

The Court of Protection will grant permission for a deputy to make one-off or ongoing decisions on someone else’s behalf, such as what medical treatment they receive, where they live, how to handle their finances, or whether to sell a property.  

Does the Attorney of My Lasting Power of Attorney (LPA) Also Execute My Will?

In order for a Will to be valid, you have to have mental capacity when you’re making it. In addition, you must not be coerced or be forced to make the Will, you must know and understand that you are making the Will and you must make sure it is valid by signing it in front of witnesses. An attorney cannot execute a Will on your behalf. Your attorney can assist you by going to solicitor meetings and can help you make decisions if you have the mental capacity. 

However, if you do not have mental capacity and you did not make a Will yourself, your attorney can apply through the Court of Protection to make a Will called a Statutory Will on your behalf.  

Does Power of Attorney Override a Will?

No, a power of attorney cannot override or change your Will. An attorney can help someone to write or amend a Will providing they have the mental capacity to do so.

Does a Spouse Automatically Have Power of Attorney UK?

No, no one has the automatic legal right to make decisions on your behalf or to be an attorney without applying for a Lasting Power of Attorney through the Office of Public Guardian

If you would like further advice from our specialist solicitors, please contact us on info@lyonsbowe.co.uk 

Wills and Probate Misconceptions 

Does Everything Automatically Go to a Spouse After Death?

No, everything does not necessarily go to your spouse after death. If you made a Will that details that your spouse will receive all of your belongings and assets after you pass away, then they will inherit these. If you did not make a Will, any jointly owned property with your spouse, for instance, will be passed to them. 

If you don’t have any children, then all of your estate which includes your savings, property, investments and any other assets will go to your spouse. If you do have children and your estate is worth up to £270,000, it will still go to your spouse. But, if the estate is worth over £270,000, anything over this amount will be divided between your spouse or civil partner and your children. It is a good idea to seek legal advice if your circumstances are more complex. 

What Happens if You Are Not Married and Your Partner Dies?

If you are not married and your partner dies, you do not automatically inherit their assets. So it is very important that if you want your property, investments, savings, or any other assets to go to your partner, you should make a Will. 

Can I Just Write My Own Will in the UK?

Yes, you can write your own Will, but it is important that you do it correctly so that it is legally binding and therefore sufficiently protects your assets. The reason for this is that if your Will is not valid, then your assets may not be left to the people you want to inherit them. Other people may contest the Will if they feel as though they should benefit from it. 

Do Solicitors Charge for Keeping a Will?

If a solicitor has written a Will for you, they will not usually charge you for keeping it on their premises. However, if a solicitor has not written the Will for you, they may charge you a fee for keeping it safe for you.

Do All Wills in the UK Have to Go to Probate?

No, not all Wills go to probate. This is because probate is usually necessary if someone leaves a large number of assets behind when they die. For instance, probate is not usually needed when the deceased jointly owned property or when they have less than £5000 in their bank account.

 

If you would like further advice from our specialist wills and probate solicitors, please contact us on info@lyonsbowe.co.uk