Top 5 Family Law Myths That Still Confuse People in 2025

These days the law, and family law in particular, is generally far more accessible than it has ever been before. Basic advice is available online to all (provided, of course, that they go to a reputable source).

But despite this accessibility there are various family law myths that still persist.

In this article we will look at five of the most prevalent family law myths, which still confuse people in 2025.

Myth 1: The ‘common law marriage’

The first family law myth is perhaps the most enduring, and can also be one of the most dangerous.

It is still believed in many quarters that the “common law marriage” actually exists, whereby if an unmarried couple live together for long enough they will acquire the same status as a married couple, and therefore the same rights as a married couple.

But this is simply not true. There is just no such thing as a “common law marriage”. No matter how long a couple live together they will never acquire the same status as a married couple.

And this can have very important consequences should the relationship break down.

When a marriage breaks down each party has a right to claim financial support from the other, but no such right exists between cohabiting couples.

When a cohabiting relationship breaks down one party can seek support from the other for any dependent children, but not for themselves. Between the parties simple property rules generally apply, whereby each party keeps whatever they own.

And if the home in which the cohabiting couple lived together was owned by just one party then the other party cannot usually claim a share of the property, unless they made some significant contribution towards the purchase or improvement of the property, or they can show that the other party agreed to them having a share.

Needless to say, this can result in serious hardship for the less well-off party, who may find themselves homeless, with no ability to claim money for themselves from the other party, or a share of the other party’s pension.

There are ways that someone entering a cohabiting relationship can try to protect themselves, for example by entering into a cohabitation agreement, but obviously they may not see the need for this if they believe in the myth of the common law marriage.

Myth 2: Mothers always get custody

Another common family law myth, linked of course to the family law myth that the courts are biased against fathers. (Note that we have used the word “custody” here for the sake of simplicity – it is not actually used by the law anymore, which speaks of “child arrangements orders”, rather than “custody orders”.)

It may be statistically true that courts order that children live with their mothers more often than they order that they live with their fathers, but this is simply because it is more likely to be appropriate for them to live with their mothers, as we still live in a society where there is a greater expectation that children should be looked after by their mothers.

In fact, there is nothing in the law to favour mothers or fathers in deciding upon arrangements for children.

The court will make its decision based upon what it considers to be best for the welfare of the child. And in doing so it will consider all of the circumstances of the case, including in particular the matters set out in the ‘welfare checklist’:

1. The ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding);

2. The child’s physical, emotional and educational needs;

3. The likely effect on the child of any change in the child’s circumstances;

4. The child’s age, sex, background and any other relevant characteristics;

5. Any harm which the child has suffered or is at risk of suffering; and  

6. How capable each of the parents is of meeting the child’s needs.

As will be seen, there is nothing in this list that suggests that mothers should be favoured over fathers. If the court considers the matters set out in the list and decides that the welfare of the child would be best served if they live with their father, then that is the order that the court will make.

Myth 3: You can’t see your kids without a court order

When parents are separated it is obviously quite likely that their children will live with just one of their parents, meaning that arrangements will have to be made for them to spend time with, or have contact with, the other parent.

But this does not necessarily mean that the other parent will have to get a court order.

The idea that a court order is always required may often emanate from the parent with whom the children are living, used as a means of discouraging the other parent from seeking contact. Or perhaps the parent with whom the children are living genuinely believes in the myth, possibly because a court order would make any arrangement regarding the children ‘official’.

Whatever, it is not necessary in all cases for there to be a court order. Indeed, the law encourages parents to sort out arrangements for their children without getting a court order.

It is perfectly possible for parents to agree arrangements for their children between themselves without going to court, or any written proof of the arrangement. In fact, this is what happens in the vast majority of cases.

Accordingly, when parents separate they should both try their best to sort out arrangements for their children by agreement (if necessary with the assistance of a mediator). Court should only be a last resort, if it is just not possible to reach an agreement.

If agreement is reached then it is not usually necessary to confirm it in a court order, although it can sometimes be useful to confirm it in writing (if the agreement is reached in mediation then the mediator will make a written note of what has been agreed).

Myth 4: Bad conduct affects the financial entitlement on divorce

This is a very common divorce myth, which often leads to parties unnecessarily spending a lot of time and money arguing over matters that simply have no bearing upon financial entitlement on divorce.

It is of course quite natural that when a divorce occurs one party may be aggrieved at the conduct of the other party, perhaps blaming the other party for the breakdown of the marriage.

And conduct during the marriage can have a bearing upon the financial settlement – it is one of the matters to which the court should have regard when deciding what settlement to order.

However, for conduct to have a bearing it must be of an exceptionally serious nature. The sort of bad conduct that often occurs when a marriage breaks down is simply not going to be sufficient to have a bearing, no matter how awful the other party may think the conduct to be.

To give an idea of the sort of conduct that might have a bearing, it has been suggested that very serious domestic violence may suffice, especially if it has significant financial consequences for the victim.

Apart from this sort of personal misconduct, serious financial misconduct can also have a bearing if it seriously depleted the martial assets, for example heavy gambling.

There is also bad conduct in the course of the court proceedings, for example failure to comply with court orders, but this sort of misconduct is usually penalised with a costs order against that party, rather than reflected in the actual settlement.

Unfortunately, the law reports are full of cases in which one party runs up huge costs pursuing allegations of bad conduct by the other party, in the erroneous hope that it will result in them receiving a larger settlement.

Bad conduct will only rarely affect the settlement, and anyone considering raising the issue should first seek expert legal advice.

Myth 5: Assets are always divided equally on divorce

Another divorce myth that is quite common, and that does contain a grain of truth.

It is true that there is a principle used by the courts which says that, as a general guide, an equal division of assets between husband and wife should be departed from only if, and to the extent that, there is good reason for doing so. This is known as the ‘sharing principle’.

The sharing principle means that it is indeed quite often the case that the marital assets are divided equally on divorce.

But there are also many cases when an equal division is not appropriate.

It may, for example, be the case that one party has suffered a financial disadvantage as a result of the marriage, for example giving up a promising career to look after the family. In such cases it may be appropriate for that party to receive a larger share of the assets, to compensate them for that disadvantage.

But by far the most common reason for departing from an equal division is the needs of the parties. Very often one party’s financial and housing needs are greater than the needs of the other party. Perhaps the most common example of this is where one party will be looking after the children of the marriage. That party will obviously have greater financial and housing needs than the other party, and will therefore need a greater than half share of the assets in order to meet those needs (unless, of course, the assets are so substantial that a half share would be enough to meet the needs).

In short, assets can be divided equally on divorce, but that is most certainly not always the case.

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