13 myths about family law

We’ve rounded up some of the most common misconceptions and myths about family law matters, whether in relation to parenting, property or divorce. Here, we debunk 13 myths about family law.

Myth 1: “My spouse’s adultery means I’ll get more in the property settlement”

Generally, the courts aren’t really interested in affairs and infidelity. “No fault divorce” in Australia means just that—no party is to blame, no matter how many affairs a party may have had. It’s irrelevant to try to prove a party was “at fault” in a divorce. The reason for the separation, does not come into consideration in how property is to be divided between each party.

Myth 2: “I can get a quickie divorce”

The phrase is often bandied about in the media, but it’s misleading. To get a divorce you first need to demonstrate you’ve been separated for a minimum of 12 months. Even if you wish to get divorced the day after this period of separation ends, and both parties sign all the required paperwork, a court will still have to review your application to ensure it complies with all the requirements of the Family Law Act. Then there is a ‘cooling off’ period of one month before your divorce is final.

Myth 3: “The courts have a formula for property settlement”

There is no formula or starting point in property matters. There are some principles that can give legal practitioners a basic idea of likely settlement size in a given case, taking into account the circumstances but there is no actual formula applied to division of assets. Instead, the law is applied based on the contributions from each party, and their future needs, as well as the Court’s requirement to make orders that are ‘just and equitable’.

Myth 4: “Spousal maintenance is a meal ticket for life”

Although the misconception is that spousal maintenance payments are for life, there are actually limits on post-divorce spousal support, which will depend on the circumstances of the particular case. Essentially, the financially weaker party is expected to eventually gain employment.

Myth 5: “Quit your job and you won’t have to pay maintenance/will receive maintenance”

Quitting your employment just before you get divorced will not mean you can avoid paying maintenance. Similarly, being unemployed does not mean a financially stronger spouse will have to pay you maintenance. The courts will look at each party’s capacity to earn income, as well as why an individual is not employed and what they have done to find employment or retrain, and they most certainly will frown on tactical manipulation of earning capacity to avoid maintenance obligations.

Myth 6: “The asset isn’t in my name so it can’t be included in the settlement”

When you are seeking a property settlement via litigation, you and your spouse both have the obligation to give full disclosure of all your financial and other relevant circumstances. This includes disclosure of any assets that may not be in your name but in which you have an interest, or changes to your financial position that may occur during the court process. Deliberately distorting the truth by not providing full disclosure can enable a court to draw adverse inferences against you, have an order set aside, or at the worst, bring criminal proceedings against you. Even if an asset is not held in your name, but perhaps a family member holds it on your behalf, it must be disclosed. The same goes for assets that are held in family trusts or companies that you are involved in.

Myth 7: “I have to wait until my divorce is finalised before I can finalise my property settlement”

In fact, there’s no requirement to wait until you are divorced to finalise your property settlement. Property settlement orders can be made any time after separation and it’s usually best to seek to finalise your property settlement as soon as possible after separation. This is because there’s a 12 month time limit for commencing proceedings in family court which begins from the day your divorce order comes into effect, or if you were in a de facto relationship, the time limit is 2 years from the date of separation. Finalising your property settlement either before or simultaneously with your divorce will help ensure you stay within the time limit.

Myth 8: “I have rights to my children”

Actually, parents don’t have any legal right to see their children or to have their children live with them! It’s the child who has the right to meaningful relationship with each of its parents, provided there is no unacceptable risk of harm to the child.

Myth 9: “It’s inevitable that I’ll have to fight for access to my kids in court”

Out of all the parenting disputes that occur in Australia, it’s believed that only around 5-7% of cases end up in the courts. This is because most families will not seek legal advice at all, instead reaching agreement privately. For those who cannot agree privately, and wish to file an application for a parenting order in the courts, it’s mandatory to first attend a Family Dispute Resolution service offered by a registered Family Dispute Resolution Practitioner. Proof of this is obtained through a section 60I Certificate and this must accompany any family court application. Attending FDR mediation increases the likelihood that couples will avoid court.

Myth 10: “I’ll get exactly half of the property”

To determine the distribution and division of assets, courts apply a “four step property settlement process”, considering the value of the parties’ net assets and liabilities, and financial resources, at the date of the hearing or settlement.

There’s no automatic 50/50 division though, and parties are not required to evenly divide their assets on separation. Outcomes are determined by many factors, including the length of the relationship, financial contributions of each party, non-financial contributions of each party, and the current and future needs of each party.

Myth 11: “I earned all the money so I deserve more in the settlement”

The courts consider more than simply the financial contributions each party has made to the marriage—the (albeit difficult to quantify) value of the contributions of the homemaker and caregiver for children is also taken into account. One party may have been the main breadwinner, but the other party may have limited their earning capacity by caring for the kids and managing the household, or have sacrificed their own career progression to support their spouse’s.

Myth 12: “I’m still living in the family home, so we’re not really separated”

“Separating under the one roof” is a valid concept in family law. Sometimes couples choose this, whether for the sake of the children, finances or convenience, other couples find they have limited choice but to remain living in the matrimonial home for now. Litigating couples will still need to prove separation in terms such as, sleeping in separate rooms, division of household bills, etc.

Myth 13: “Now that we’re separated, my spouse can’t access any of my inheritance”

Any lump sum inheritances, gifts, lottery wins acquired after separation can still be considered part of the net assets at the date of trial or final property settlement. This is so until you have finalised property settlement matters. Another good reason to finalise this as soon as possible.

Author

Gianna Huesch
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