Top Myths & Misconceptions in Family Law
Parents are automatically entitled to equal shared care
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.
The courts favour the mother and will let the children live with her.
The court considers what is in the best interests of the child and may order that they live with either parent.
My children will be able to decide which parent they live with.
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.
I have to go to court to settle my family law matter.
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.
My spouse is entitled to half of my property.
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.
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.
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.
We have been living together for over 12 months and are therefore considered de facto spouses.
The Family Law Act defines a de facto relationship as a couple living together in a genuine domestic basis. You will be considered a de facto spouse if you have lived together for two years. You also be entitled to seek property settlement from your de facto spouse if you have a child of the relationship or the circumstances are that not to recognize the relationship would be unjust.
I cannot negotiate a property settlement with my spouse until I am divorced.
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.
My spouse is violent to me, I therefore do not have to let him/her see the children.
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.
I can take my children overseas on holiday if I wish.
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.
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.