Are you guilty of believing these family law myths? There are many family law myths that are often believed, but we’re here to debunk them with the facts. The family law myths you might have heard usually are misinterpretations of the law, especially surrounding property settlement and child custody. These myths may even make you feel worried about ending a relationship, but first, find out the facts about family law and how it works.
Family Law Myths – Divorce
Many people believe that if you are famous, you will receive a quick divorce as reported in many of the gossip magazines. The truth is that there is no such thing as a quickie divorce in Australian law. You cannot simply obtain the Certificate of Divorce by paying extra money or using power and influence. The only thing that will speed up the process is co-operation.
In Australia, you must have been separated for 12 months before you can apply for divorce. If you are desperate to get the divorce over and done with as quickly as possible, it will help to come to an agreement, document both parties’ wishes and ensure all necessary paperwork has been completed. If you can’t agree on issues such as property settlement and child custody, it’s likely that your divorce proceedings will drag on for longer.
Another myth regarding divorce is whether infidelity can affect how a property settlement is decided. However, this is false. Australia has had a no-fault divorce system for decades, which means that in the eyes of the law, it doesn’t matter who is responsible for the breakdown of the relationship. If your divorce ends up in court, the judge is not interested in hearing why the divorce occurred, but how to satisfy the needs of both parties and any children involved. For example, a judge may need to decide whether the wife will receive the house as she will have primary care of the children, or if the house will be sold and divided equally as custody will be shared.
Perhaps one of the most commonly believed family law myths is that the person who earned the most money will get all the assets in a divorce. Family law is also concerned with non-financial contributions, such as taking care of children or caring for a family member. Family law looks at:
- the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings
- indirect financial contributions by each party such as gifts and inheritances from families
- the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
- future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.
The way your assets and debts will be shared between you will depend on the individual circumstances of your family.
People also believe that to qualify for the 12 months separation before the divorce, you must be living separately. However, you can be separated while still living together. You can show proof of sleeping separately, caring for the children separately and paying different bills. However, the court understands that living together may benefit financially or may assist in ensuring stability for the children.
Family Law Myths – De-Facto and Pre-Nups
You may believe that if you have lived with someone for more than six months, you now are entitled to claim on their assets. However, it is not always that simple. For a relationship to be nominated de facto, the court will take into account:
- The nature and length of the relationship.
- Whether they had lived together.
- The nature and extent of common residence.
- The degree of financial inter-dependency.
- The public aspect of their relationship.
It’s also common to think that pre-nuptial agreements are reserved for only the rich and famous as they have many assets they will want protected. However, this is not the case. Anyone and everyone can create a pre-nup (known as a financial agreement) if they feel it is required. Parties make an agreement setting out how their assets will be divided if they do end up separating. The requirements of these agreements are quite strict, including the need for both parties to get their own legal advice from a solicitor.
Family Law Myths – Children
One of the family court’s guiding principles is the best interests of the children. The Family Law Act 1975 s 60CC outlines how the best interests of a child is determined.
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
You must attend Family Dispute Resolution before you can apply for a parenting order in court. In most cases, parents can create an arrangement that they can both agree on, but if you can’t agree, you may end up in court.