Many Australian adults will have a personal Family Law experience or anecdote (or two or three). And if you don’t, then you will certainly have heard some from family and friends. Unfortunately, these ‘anecdotes’ are often taken to be universal truths when, in fact, they are really just well-known myths.
We want to ensure that all Australians can tell fact from fiction when it comes to Family Law and their particular situations. So, today we’re setting out some of the most common Family Law myths and the truths behind them.
The idea that property and assets will be split 50/50 is one of the most common myths we hear as Family Law specialists. But the courts are actually far more concerned with what is ‘fair’ and will consider needs and contributions beyond monetary. In many cases, splitting things straight down the middle does not give you the fairest outcome.
To make a fair property settlement, the courts will take four steps:
They will then consider factors to determine what is a fair and equitable division. Some of these factors include:
So, at the end of a marriage, there is no automatic entitlement to 50% of everything (or anything). Your property division will be determined on a case-by-case basis, unique to your circumstances.
Family Law recognises that partners contribute to relationships in their own ways. Some may work outside of the home and contribute financially. On the other hand, some may care for the children and the home and contribute non-financially. Each of these contributions is important and will be considered when it comes to the division of the property pool.
In some circumstances, it is possible to complete a superannuation split. This means you can apply to the super fund trustee and arrange for funds to be transferred from your spouse’s super fund to yours.
However, this is a very technical process. Certain steps must be followed including procedural fairness to the superfund trustee and the correct wording in any orders or agreements. It’s best to work with a Family Law expert to ensure you get it all right.
In order to qualify for spousal maintenance, you will have to prove that you have a need for the support and that your former spouse can pay. Spousal maintenance must be set out in a legal agreement and approved by the courts under Section 87 of the Family Law Act 1975 (Cth). Because of the complex nature of this element of Family Law, it’s best to get the help of an expert Family Law specialist as soon as possible.
If you have control of, or an interest in, a company or trust, then those assets will be included as part of the property pool if you divorce. This can get complicated where third parties (other shareholders or owners of a company) are involved. But, in those circumstances, often the assets of the company or trust will be considered a ‘financial resource’ and make their way into the property pool in that manner.
The only reason that ‘bad behaviour’ will be considered is if the former spouse has been financially reckless or wasteful. This might be gambling or having an excessively costly lifestyle. Family violence will also be considered.
There’s no fixed age when a child is able to choose where they want to live or if they want to spend time with a parent. Practically, however, courts recognise that teens are less likely to cooperate with orders they don’t agree with. So they will take this into account (along with all the other factors they consider) when making custodial orders.
‘Legal separation’ is not an Australian concept. In Australia, in order to separate, you just need to tell the other partner that you wish to separate and then act on that intention. Sometimes this may mean moving out, and sometimes it may just mean moving into separate bedrooms. It is important to record the details and dates of your separation, as sometimes disputes around when this actually occurred can come up.
When it comes to getting the best Family Law information for you and your situation, it’s always best to go to the source (expert Family Law lawyers like Patrick Dawson Law!). While your family and friends will have the best of intentions, attempting to separate based on Family Law stories, anecdotes and myths will just end up getting you into trouble. And it certainly won’t ensure you get the best outcome.
Only an expert will be able to clear up misconceptions and help you navigate the separation process with ease. And they’ll ensure you get the best outcome for your situation.
*Disclaimer*
The information contained in this article is for general guidance and information purposes only and should not be used as a substitute for consultation with professional legal advisers.
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