Five myths in family law
IN NO particular order, I am setting out below five points that often cause confusion in family law proceedings: MYTH 1. The respondent must sign documents in order to get divorced.
There is no such requirement in law. It is true that a respondent must be served with a Petition for Dissolution of Marriage, but once that document is served, it is left to that respondent to decide whether to participate in the divorce proceedings. In fact, when the petition is being served on the respondent, if he or she refuses to take the document, it will be proper service to leave the documents at the respondent’s feet. The divorce proceedings can be concluded without the respondent ever filing any documents in court. MYTH 2. When you separate from your husband or wife, you should ‘gazette’ him or her.
That is not true. The practice of ‘gazetting’ a husband or wife from whom you have separated involves publishing a notice in the newspaper to announce that you are separated from him or her and that you are no longer responsible for his or her debts. That is an outdated approach that was necessary at a time when wives were the property of their husbands and husbands were liable for their wives’ debts. That is no longer so, as a wife can enter into a contract without binding her husband, and vice versa. MYTH 3. You must remain in the family home to protect
your interest in that property.
That is not so. Particularly if being in the family home creates a risk to health and well-being, it is neither necessary nor advisable to remain in that home. Leaving the home in such circumstances will not result in the abandonment of your interest in that property, unless you stay away for a period of at least 12 years and ignore your obligations to contribute towards the upkeep and maintenance of the property. MYTH 4. You can only get an occupation order if the house belongs to you.
That is false. An occupation order may be granted under the Domestic Violence Act to allow a named person to occupy a house. Effectively, that order will also mean that some other person is prevented from entering that house. The person who is prevented from entering that house may be the tenant or even the owner. MYTH 5. The Domestic Violence Act only provides protection against physical injury.
That is wrong. The actual or threatened injury to a person who seeks protection under the Domestic Violence Act may be physical, mental, verbal or even emotional.
Please free to send your questions about commonly held views about family law proceedings so that we can test whether those views are myths or facts.