Attwood Marshall Lawyers Family Law Consulting Special Counsel Michael Twohill recently joined Robyn Hyland on Radio 4CRB to set the record straight and debunk some of the most common myths or misconceptions experienced family lawyers face when helping their clients.
Navigating family law matters can feel like traversing a maze of misconceptions. From divorce and property settlements to parenting arrangements, myths are commonly believed as facts, clouding what people should expect when facing a family law matter.
Here, we delve into the common misconceptions surrounding family law, debunking myths that often lead to confusion and frustration. Whether it’s well-meaning advice from friends or assumptions based on hearsay or what someone sees in movies, we shed light on why family law matters aren’t as straightforward as they seem.
Before relying on the grapevine, or the neighbourhood ‘expert’, trust the insights of experienced family lawyers to guide you through the complexities. It’s not just about saving money – it’s about ensuring that you navigate your unique circumstances with clarity and confidence and get the best possible outcome so that you and your family can move on with your lives.
Myth 1: “I can’t get divorced unless my partner agrees.”
Both parties do not need to agree to a divorce. A person seeking a divorce can apply without the consent or cooperation of their ex-partner.
Some critical timeframes 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: “Property is split 50/50 when a couple separates.”
This preconceived idea that couples who separate must split their assets into equal shares is untrue. Every matter is dealt with on a case-by-case basis.
When deciding who gets what, the court will consider:
- The net property pool and the value of the assets and liabilities.
- What were the contributions of both parties, including financial and non-financial contributions.
- The future needs of both parties, considering 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 are entitled to less of the property pool.”
While many individuals might believe (or hope) this to be true, unfortunately, this myth holds no merit.
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.
Myth 4: “You cannot officially be separated until someone leaves the family home.”
This is untrue.
Due to the housing crisis and rising cost of living, more and more separated couples are being forced to remain under one roof for longer following separation. However, this does not mean they are not considered separated in the eyes of the law.
For separation to occur, one party needs to communicate their intention to end the marriage or relationship and make a note of the date this discussion was had.
The action of separating must involve a full and final break from the marital relationship and may include:
- the ceasing of sexual activity
- living in separate rooms
- operating separate bank accounts
- not sharing meals
- not providing household services
- not sharing mutual entertainment inside or outside the home
- not representing to relatives, friends, or colleagues that the marriage is ongoing.
Myth 5: “It’s up to the children where they choose to live when parents go their separate ways.”
While children’s desires are typically considered, their specific preferences do not determine custody arrangements when parents separate.
The extent to which a child’s wishes are influential varies based on factors such as their age, maturity, and other relevant considerations.
It’s important to note that children are not expected to make definitive decisions about their living arrangements, nor should they feel pressured to do so.
When parents separate and need to determine where their children will live, they may go through various processes depending on their circumstances.
Generally, they may require:
- Negotiation or Mediation: Parents may attempt to reach an agreement regarding custody and living arrangements for their children through negotiation or mediation. This involves discussing their preferences and concerns with the help of a mediator or through direct communication.
- Parenting Plan: Parents can work together to create a parenting plan that outlines custody details, visitation schedules, decision-making responsibilities, and other relevant arrangements. This plan is then submitted to the court for approval.
- Court Proceedings: If parents cannot reach an agreement on their own as to where their children will live and how they will spend their time with each parent, they may need to initiate court proceedings. This typically involves filing an application with the family court, after which the court will hold hearings to determine custody and living arrangements based on the child’s best interests.
Myth 6: “We can’t negotiate a property settlement and divide assets until officially divorced.”
Divorce and property settlements are two different issues. You can proceed with a property settlement immediately following separation, despite not having divorced.
Regarding 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 divorce is granted.
Myth 7: “Coming to an informal agreement about how property will be split is sufficient; there is no need to see a lawyer if you can amicably split assets.”
Unfortunately, this is incorrect. If only it were that simple.
Coming to an informal agreement is not legally binding or enforceable under family law. It is essential to make your agreement legal to avoid further claims down the track.
This can be done by documenting the arrangement in a Binding Financial Agreement, which will be drafted by lawyers. Each party to the agreement will receive independent legal advice to ensure their best interests are protected and that they understand their rights and obligations under the agreement.
Entering a Binding Financial Agreement will remove the risk of a former partner coming back at a later date to try to take a second bite of the cherry – which can happen!
Myth 8: “Getting divorced means I must battle it out in court with my ex.”
Divorce and separation do not need to be resolved in court. The Family Law system has undergone one of the most significant reforms since it was first established in 1975 to encourage early resolution of family law disputes.
There are pre-action procedures that parties must follow before they can file an application. Certificates must be completed to confirm compliance with these procedures, and a court will not allow you to escalate the matter to litigation unless you have followed these procedures and proven that you have tried to resolve your matter early.
Seeking advice from an experienced family lawyer can help you negotiate effectively with your former partner and settle all matters in the most effective and productive way.
Attwood Marshall Lawyers – helping families resolve disputes effectively
Attwood Marshall Lawyers has 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 and need someone on your side to support you throughout the divorce process, we can help you understand your rights and obligations and will guide you through this challenging time. We want to help you move on quickly 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.
