When you are entering into family law proceedings, whether it be parenting, property or divorce there are a number of myths floating around about the process and what you are entitled to. We have compiled a list of the Top 10 Family Law Myths and truth about your entitlements.
- “I have to wait 12 months to finalise my property settlement.”
There is no need to wait to finalise your property settlement.
In fact, upon separation you can (and should) seek to finalise your property settlement sooner rather than later.
This is different to a Divorce whereby you have to wait 12 months before you can apply for a Divorce Order in Australia.
- “I have a right to see my kid.”
A parent does not have a legal right to see their child (or that the child lives with him/her). Conversely, it is the child’s right to have a meaningful relationship with both parents, to the maximum extent consistent with the best interests of the child (being the paramount consideration).
- “I have to go to Court to get custody over my kids.”
It is now a legal requirement that, except for limited circumstances, parents must attend a Family Dispute Resolution to be facilitated by a registered Family Dispute Resolution Practitioner (“the FDRP”) before you can file an Application for a Parenting Order. A Section 60I Certificate must be obtained from the FDRP which must be attached to the court application. Statistics show that only 5% of those who have a relationship or marriage breakdown actually end up in Court. About half of these do not seek legal advice at all and come to their own arrangements. This is particularly the case when there are children.
- “All of the property gets divided as at separation.”
A Court must identify and value the parties’ property, liabilities and financial resources as at the date of the hearing or settlement (whichever occurs earlier). Page 2 of 3 Having said that, it is also important to consider the value of the parties’ net assets as at separation as part of the 4-step property settlement process.
- “I earned the money so I should get more.”
The financial contributions of each party to a marriage are not the only factors that are assessed when determining the distribution and division of assets. A Court will also consider other contributions, including but not limited to the care of the children, maintenance of the house and home and unpaid work in a family business etc.
- “She stayed at home so she should get less.”
A party to a marriage who took on a homemaker role during the relationship allowing their spouse to earn an income is equally considered a relevant contribution. It is also an important consideration that a spouse who chose to stay home and manage a household or take care of the children would limit their income-earning capacity.
- “I’m not separated until I leave the home.”
You can be separated “under the one roof” (eg. sleeping in separate bedrooms, clear division of household chores and payment of household bills etc.) Many couples, for one reason or another, whether it is children, finance or convenience will remain living in the matrimonial home, even though there has been an irretrievable breakdown of the marriage.
- “We didn’t live together that long so she gets nothing.”
It is extremely rare that a spouse party’s property settlement entitlement is “0%,” even if you were living together for less than 2 years. Whether the relationship is short or long, the Court must still exercise its discretion and apply the 4-step property settlement process.
- “We are already separated so I don’t have to pay her anything.”
Provided certain requirements are met, spouses have ongoing financial responsibilities to continue to support the other spouse where they have capacity to do so. This is, in addition to and independent of, any obligations to pay child support.
- “He was unfaithful so I should get more.”
It is unnecessary and irrelevant to prove who was “at fault” in relation to a property settlement (or a Divorce) in Australia.
Please note that the information provided within this article is informative only and is not legal advice.
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Please Note: This is not legal advice but it may help you understand the law. Read more...