Myths and Misconceptions in Family Law

Considering custody and parenting time, the child’s best interests are always the primary focus in any decision. Contrary to popular belief, custody isn’t determined by parental gender; both parents have equal standing.

While children’s preferences are considered, they aren’t the decisive factor in custody arrangements. The court’s goal is to guarantee a stable, nurturing environment for the child.

In scenarios involving domestic violence, the court may limit contact to protect the child’s safety. Additionally, before seeking court modifications to parenting orders, mediation is often encouraged to resolve disputes amicably. This process helps parents reach agreements that prioritise the child’s well-being without the need for contentious court battles.

Understand these principles to navigate custody matters effectively.

Misconception
Consideration is given to what is in the best interests of the child. If equal time with both parents is not appropriate, then substantial and significant time will be considered.  There is a presumption that both parents are to share parental responsibility for making major decisions for the child.

Misconception
The court considers what is in the best interests of the child and may order that they live with either parent.

Misconception
The court will consider who the child wishes to live with if they are of such an age to show sufficient understanding and maturity of the circumstances.  Where children are too young to express a wish, the court will consider their best interests.

Myth
Only about 5% of court applications actually go to trial.  Of those who divorce, more than 50% sort out their matters between themselves and only use lawyers to formalize their agreement.  Another 45% make court applications but most do not go to trial.  Their matters are resolved by mediation, conferences or communication between lawyers.

Property Settlement Misunderstandings

When it comes to property settlements, you might think assets are always split 50/50, but that’s a common misunderstanding. Various factors like contributions and future needs influence the final decision.

Another myth is the assumption of hidden assets, but courts have mechanisms to uncover and address any concealed property.

Equal Distribution Myth

Many people mistakenly believe that property settlements in family law are always split 50/50. However, that’s a common misunderstanding. The court considers various factors to guarantee a fair and equitable division.

Here’s what you need to know:

1. Contributions: Both financial and non-financial contributions are evaluated. This includes income, homemaking, and child-rearing efforts.
2. Future Needs: The court looks at each party’s future requirements, such as age, health, and earning capacity.
3. Fairness: The primary goal is fairness, not equality. Each case is unique, and the court tailors decisions to fit individual circumstances.

Understanding these factors helps you grasp why a 50/50 split isn’t always the outcome in property settlements.

Hidden Assets Assumption

It’s a common misconception that hidden assets are always lurking in property settlements, but transparency and legal disclosure requirements make this rare.

Assuming hidden assets can lead to unnecessary suspicion and conflict during property division. Legal processes like discovery and financial disclosure are designed to uncover any concealed assets.

Courts have mechanisms in place to address hidden assets, ensuring fair and equitable property settlements. By working with a family lawyer, you can effectively identify and resolve any concerns regarding hidden assets.

This professional guidance supports a smoother division process, reinforcing the integrity of your settlement. Remember, transparency and legal requirements are your allies in achieving a fair outcome in family law cases.

Financial Settlements Unaffected

Contrary to popular belief, infidelity doesn’t entitle you to a larger share of assets in an Australian financial settlement. The Australian family law system operates on a no-fault basis, meaning infidelity doesn’t directly impact how assets are divided.

Emotional distress caused by a partner’s unfaithfulness might feel significant, but it’s not a legal consideration in financial settlements. Infidelity only has a legal impact if it led to wastage or dissipation of marital assets, like extravagant spending on an affair.

Generally, you can’t use infidelity as a basis to claim a larger portion of assets. Focus instead on demonstrating contributions and needs to guarantee a fair division under the law.

My spouse is entitled to half of my property.

Myth
There is no automatic presumption that separating couples must share their property equally. The court takes many considerations into account which include the contributions made by each party before, during and after the marriage and their current and future needs.

A written agreement between my spouse and I is sufficient.

Myth
Any agreement in relation to children or property matters needs to be properly formalized by way of Consent Orders or Binding Financial Agreement. An agreement with your spouse and written on a piece of paper is not enforceable

My spouse can take all of my super.

Misconception
Superannuation interests are considered property and will be available for distribution between separating parties. A spouse’s entitlement to superannuation will depend on the factors raised above and may only form part of any property settlement.

I cannot negotiate a property settlement with my spouse until I am divorced.

Myth
You can negotiate a property settlement with your spouse anytime after separation. You do not need to wait until you are divorced. Once divorced, you have 12 months to finalise the property matters between you.

Impact of Infidelity

When you’re dealing with a divorce, it’s common to think infidelity will impact your financial settlement. However, in no-fault divorce states like Australia, the courts don’t consider infidelity when dividing assets.

Emotional pain from infidelity doesn’t influence the division of property either.

No-Fault Divorce States

In no-fault divorce states like Australia, infidelity doesn’t influence the division of assets or property settlement. The family law system focuses on an equitable division of assets, regardless of any infidelity.

Emotional suffering due to an affair doesn’t impact how property is split. Here’s what you need to know:

1. Equal Consideration: Courts prioritise fair asset distribution over personal misconduct.
2. Irrelevance of Infidelity: Proving an affair won’t give you an advantage in property settlement.
3. Exceptions for Wastage: Infidelity may only matter if it involves financial misconduct or asset wastage.

Understanding these points can help you navigate divorce proceedings more effectively, ensuring you’re prepared for the realities of a no-fault legal system.

My spouse is violent to me, I therefore do not have to let him/her see the children.

Misconception
The children have a right to spend time with either parent unless they are likely to be harmed by that parent. Unless the child is in danger or at risk of abuse, the court will not prevent the parent spending time with the child. In some circumstances, supervised contact may be appropriate.

Divorce and Separation Facts

In Australia, divorce doesn’t necessitate mutual consent for it to proceed. You can file for divorce if the marriage has irretrievably broken down, evidenced by 12 months of separation.

Here are three key points to understand:

1. Property Settlements: They aren’t automatically split 50/50. The division considers various factors, including financial contributions and future needs.
2. Fault Irrelevance: The reasons behind the relationship breakdown don’t impact how assets are divided. Australian family law focuses on fairness rather than blame.
3. Living Arrangements: Physical separation isn’t mandatory. You can be legally separated while still living under the same roof if certain conditions are met.

Understanding these facts will help you navigate the complexities of divorce with confidence and clarity.

While understanding the facts about divorce is important, it’s equally essential to debunk common myths about child support.

Many believe child support is solely a father’s responsibility, but both parents can be required to pay based on their financial circumstances. The amount isn’t arbitrary; it’s determined by factors such as each parent’s income, the child’s needs, and care arrangements.

A formula calculates the amount, considering the percentage of care each parent provides and their respective incomes. You can apply for a child support assessment through the Department of Human Services to determine the payable amount.

I can take my children overseas on holiday if I wish.

Misconception
If you are planning to take the children overseas on a holiday, you really need to seek the other parent’s consent. If they refuse, you may need to seek an order from the court.

If I have my children half of the time, I don’t have to pay child support.

Misconception
The Child Support Agency has a formula they apply. The formula takes into account many factors including your income and school fees and other expenses associated with the child.

Legal Representation Value

Engaging a family solicitor can shield you from costly errors and safeguard your legal rights during family law proceedings. Professional representation offers expert guidance on complex matters and assists you in navigating court procedures.

Studies indicate that individuals with legal representation are more likely to achieve favourable outcomes. A solicitor can negotiate settlements, draft legal documents, and advocate for your best interests.

Consider these benefits:

1. Vital Guidance: Solicitors provide clarity in complex family law matters.
2. Key Outcomes: Represented individuals often achieve better results.
3. Reduced Stress: Professional support can alleviate confusion and uncertainty.

Do not underestimate the value of a skilled family solicitor in ensuring a smoother resolution to your family law issues. Their expertise is an essential asset.

How Can a Father Get Full Custody in Australia?

To obtain full custody in Australia, you must demonstrate that it is in your child’s best interests. Provide evidence of your ability to offer a stable, nurturing environment, and seek legal advice to present a compelling case.

What Is the Separation Law in Australia?

In Australia, you don’t need to move out to be legally separated. Communicate your intention clearly, cease joint activities and finances, and ensure your actions demonstrate the end of the relationship for legal recognition.