Attwood Marshall Lawyers Family Law Special Counsel Michael Twohill recently joined Robyn Hyland on Radio 4CRB for “Law Talks” to set the record straight and debunk the “top 10” family law myths.
Introduction
It is common for family law myths to circulate among friends and family, which can complicate people’s understanding of what to expect when facing a family law matter. We break down the most common myths that many people believe to be true and explain why divorce and property settlements are not as black and white as people expect matters of this nature to be.
As with any area of law, there are always assumptions made and misconceptions that are circulating in the community as ‘gospel’. It may be a friend or neighbour who purports to be a ‘bush lawyer’; it may be a well-meaning person at the bank or the chemist – the solution is to see an experienced family lawyer who can provide you with the right advice! It will usually save you a lot of money!
Myth 1: “I can’t get divorced unless my partner agrees to it”.
False! You and your partner do not need to agree to a divorce. A person seeking a divorce does not need to have the consent or cooperation of their ex-partner to apply for a divorce.
There are some important timeframes that must be adhered to regarding the service of documents, to ensure that there is proof the other party is aware of the divorce proceedings. However, so long as you do the paperwork and get the process right, whether your former partner wishes to get divorced or not is irrelevant, the divorce will be granted.
Myth 2: “When a couple separates, they must split their assets 50/50”.
This pre-conceived idea that couples who split must split their assets 50/50 is simply untrue. Every matter is dealt with on a case-by-case basis.
What the court considers whether it’s through negotiation, in a mediation, or in a court situation factors in the 4-step process.
The Court will consider:
- The net property pool and what the value of the assets and liabilities are.
- What the contributions of both parties were, including financial and non-financial contributions.
- The future needs of both parties, taking into account such things as their age, health, income earning capacity, whether one or both parties are required to care for children, and the financial circumstances of any new relationships.
- What is considered fair – is the split just and equitable?
Myth 3: “If one partner cheats on the other, they will be entitled to fewer assets from the property settlement”.
False…although many would like this to be the case.
The Family Law system in Australia is a no-fault system. This means that it does not matter who was at fault for the relationship breaking down. This has been the way since the commencement of the Family Law Act in 1975, which was introduced by the Whitlam government.
Prior to 1975, to be granted a divorce, it wasn’t enough to separate, you needed to establish “grounds” which included adultery, desertion, cruelty, habitual drunkenness, imprisonment, or insanity. And you had to have proof of these issues before you could successfully get divorced. This was a fault-based divorce system, which no longer applies.
In some cases, in the old days, we had private investigators consulted by both parties to “raid” a bedroom or apartment, and take photographic evidence of the adulterous party at play to obtain the required evidence.
Today, in order to get divorced, you simply need to complete an application that cites “irreconcilable differences” as the cause. In most cases, the hearing is done without the parties being present. It is a far more simple and cheaper process than what it used to be.
Myth 4: “I can’t negotiate a property settlement and divide our assets until we have officially divorced”.
Divorce and property settlements are two completely different issues. You can proceed with a property settlement immediately following separation, despite the fact you have not yet divorced.
When it comes to divorce, a 12-month limitation period applies from the date of separation before you can apply for a divorce.
Many people have their property settlement finalised before the divorce is granted.
The best way to approach the issue of property settlement is by:
- Talking about it between both parties if you can before you separate.
- If you can’t communicate and negotiate effectively, each party will need to seek advice from a family lawyer to begin negotiations.
Every case is different, and an experienced family lawyer will work with their client to form a strategy to suit their unique situation and intentions.
It is always best to try to resolve the matter without litigation. Sometimes you can reach an agreement just between the parties and their solicitors. If that fails, you will then have to go to mediation where you have a barrister sitting as an independent party assisting the parties to reach an agreement in the presence of their lawyers.
It is always better to negotiate property settlements sooner rather than later because it will cost less with legal fees and allows the parties to move on faster.
Myth 5: “We have informally agreed about how we want to divide our assets now that we are no longer together, despite our agreement being made informally, it is still enforceable”.
False! If you have separated from your partner and put an informal agreement in place about the division of assets, be under no illusions, it will not be binding under the Family Law Act.
The agreement is not worth the piece of paper it is written on. There are two ways to make a property settlement agreement legally binding, and that is to:
1. File an Application for Consent Orders with the Family Court of Australia.
2. Enter into a Binding Financial Agreement which can only be done with lawyers independently advising both parties and providing a lawyer’s certificate to confirm that the clients have received independent legal advice prior to signing the agreement.
Myth 6: “Whoever moves out of the family home first forfeits their right to it”.
This is not true. When you separate, it can be that people decide to stay in their house and separate under one roof, or alternatively, someone moves out until such time as the matter can be negotiated properly.
Just because one party moves out of the family home does not mean that they lose their right to it.
The reality is it does not matter who is in the house and whose name the property is in, whether that be in both names jointly, one party’s name, in a company name, etc. As far as the family court is concerned, the family home is an asset that has been accumulated during the period of the relationship and therefore it is a joint asset.
Whilst waiting to resolve matters, the person remaining in the family home may need to go to court to get an exclusive occupancy order. If that happens, the Court will usually make an order to state that the person will look after that property while they remain in the home. The Court will also put in place protections for the other party and their interests in the property.
If one party is threatening the other party saying the house will be sold from under them, these threats should be ignored. If you are the person who remains in the family home, stay there. Nothing is going to influence the court to make an interim order to make you vacate the premises, despite any threats that may be thrown at you.
Myth 7: “Getting divorced means I have to battle it out in court with my ex”.
Divorce and separation do not need to be resolved in court. In fact, the Family Law system has recently gone through one of the most significant reforms since it was first established in 1975.
Leading up to September 2021, Australia’s Family Law system was… to put it simply, dysfunctional. The system is still somewhat dysfunctional and has a significant backlog of matters to resolve before the benefits of the new system can be achieved.
Many people still have to wait years to get a decision on their matter however it will get better as the old cases that were in the system prior to 1 September 2021 get settled or dealt with by the courts and the backlog is cleared.
In order to address the systemic issues courts historically have faced, new reforms have taken place to ensure family law matters can be attended to and resolved much faster by improving the efficiency of the system.
The changes are intended to drive faster, more affordable, and consistent dispute resolution processes and put a greater focus on early resolution. This means that most matters are resolved at the mediation stage, removing the need to battle it out in court.
There are now pre-action procedures that parties must follow before they can file an application. There are certificates to complete to confirm compliance with these procedures and a court will not allow you to escalate the matter to litigation if you have not followed these procedures and proven that you have tried to resolve the matter early.
Myth 8: “A couple needs to live together for at least 6 months before their relationship is considered a de facto relationship in the eyes of the law.”
This is not true. However, in some cases, it may be sufficient to argue that there is a de-facto relationship for reasons such as children and/or financial consolidation if a relationship falls outside of the traditional legal definition.
The legal definition of a de facto relationship outlines that two people, whether they be of the same sex or opposite sex, have had a relationship as a couple living together on a domestic basis. The couple must not be legally married and are not related by family.
It is important to understand that just because you might not fit the criteria outlined above, that does not mean you may not be considered in a de facto relationship for the purposes of resolving a family law dispute.
De facto relationships do not need to be registered, unlike marriages, to be identified as a de facto relationship. They just simply need to meet the criteria mentioned above.
There is a general rule that a couple had to have lived together for two years without separation to be classified as a de-facto relationship.
Myth 9: “Women always win and men always lose out when they get divorced”.
This is a common misconception that reflects the perception of a traditional family.
A traditional family was once perceived as the male being the main income earner and the female being the primary carer for dependent children and the primary homemaker.
Families are very different today, and contemporary relationships usually consist of both partners having similar income earning capacity and contributing to the home and raising of children equally.
It really does come back to the fact that in a divorce and a property settlement, each case will be assessed on its own merit and the distribution of assets will be made fairly to reflect that family’s specific financial and personal circumstances.
Ultimately, the court will always make an order that they find is just and equitable.
Myth 10: “The only people who win in a divorce are the lawyers”.
Divorce does not need to be expensive.
The system continues to evolve, and our current family law system promotes early resolution so that people can move on with their lives faster and their matters can be finalised quicker.
Gone are the days of lawyers promoting arguments over settlements and drawing out the process for their clients.
Unfortunately, there are still some lawyers who practice in this manner; however, you will get a feel for a lawyer’s intent and strategy when you attend your first appointment to determine if they are a match for you. A lot of times a good lawyer will spend up to 2 hours with a client at their initial consultation, where they will run through everything, making sure that the client is not thinking too far ahead and that their intentions and expectations are in line with the law and how the matter may play out.
At the end of the day, each party plays their part in how effective negotiations can be and how quickly they can reach a resolution. Good mediators will tell people at the start if they need to move their position to meet an agreement.
If parties can communicate throughout the negotiations and keep conflict at bay, the matters can be resolved much quicker and in turn, will not rack up excessive bills in litigation.
There are two costs people experience when parties separate – the financial cost and the personal cost. In time most people can get over the financial cost of resolving their matter. Most people never get over the personal cost. What people must address is the need to limit the personal cost.
A good family lawyer should explore all avenues other than litigation, if possible, to achieve great results in a timely and cost-effective manner.
The longer a matter goes on, the more it is going to cost. Ultimately, the parties to the dispute are the ones responsible for how long it takes and what it costs. Although the lawyers play an important part in how these matters are resolved, it is usually the parties themselves that determine how a matter plays out. Sometimes emotion can overrule common sense, no matter how hard the lawyers try to get their client to be reasonable. It’s easy to blame the lawyers, but in fact, it comes down to the parties themselves, their conduct and how motivated they are to resolve their dispute.
Attwood Marshall Lawyers – helping families resolve disputes effectively
Attwood Marshall Lawyers have a dedicated family law team who practice exclusively in family law matters. The team are well-versed in assisting clients with divorce, property settlements, binding financial agreements, parenting disputes and spousal maintenance, domestic and family violence, and estate planning.
If you have recently separated, we can help you understand your rights and obligations and will guide you through this challenging time and change in your family circumstances. We want to help you move on as quickly as possible and reduce conflict.
For advice, please contact our Family Law Department Manager Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call our 24/7 phone line on 1800 621 071.
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