Australia: 10 things you may not know about family law

Last Updated: 22 November 2015
Article by Simon Creek

10 Things You May Not Know about Family Law

Many people share their experiences and stories from their family law matters with family and friends. This can create myths about family law. Here are a few little known facts about family law:

  1. After separating, couples need to wait a minimum of 12 months before they are able to file an Application for Divorce; section 48 of the Family Law Act 1975 (Cth). This period of separation is important to show an irretrievable breakdown of the marriage. This period does not have to be continuous – the couple may reconcile for up to three months without resetting the separation period; section 50 of the Family Law Act 1975 (Cth). In those circumstances, the total period of separation includes the periods before and after the couple resumes their relationship.
  2. FIFO workers beware! - a couple may be considered 'de facto' even though they only physically live together for half (or less) of the year. It is commonly thought that couples must physically live together for two years before they attain de facto status. Cohabitation is one of many indicators of a de facto relationship. Other factors include whether there are children, whether the parties share their finances, how the parties present their relationship to others, and whether there is a sexual relationship.
  3. Since 2002, the Family Court has treated superannuation as "property of a marriage". This means that couples can value and split their superannuation entitlements as part of a property settlement – with exceptions – see below! Splitting superannuation does not convert it into a cash asset. Rather, super splitting orders result in a transfer of funds between the spouses' superannuation balances. However, parties to family law property proceedings tend to prioritise their immediate needs (that is, cash that they can access now) rather than their long term interests (in the form of superannuation accessed upon retirement). Splitting superannuation is not mandatory. However, it can be a useful tool to offset the division of other property.
  4. Super splitting in WA is only available to married couples – de facto couples cannot split their super regardless of how long they have been together.
  5. Parents have no 'rights' in relation to their children, only responsibilities. Section 60CC of the Family Law Act 1975 (Cth) provides for a child's right to have a meaningful relationship with both of their parents, unless there are concerns about their safety or wellbeing. That is, parenting matters are always oriented about the best interests of the children, and not the rights of each parent.
  6. A very small proportion of family law matters that start in the Family Court actually reach Trial. There are many reasons for this, including:
    1. the Family Court's preference for mediated outcomes over Judicial decisions;
    2. the delay in matters being listed for Trial; and
    3. the high cost of legal proceedings.
  1. Before commencing Family Court proceedings about children's issues, couples must attempt mediation. There are exemptions to this rule, but only in situations where mediation is not practical or possible due to extreme urgency, violence between the parties or a significant risk to the children's physical or psychological welfare.
  2. There are time limits for filing an application with the Family Court for property orders. De facto couples have two years from the date of separation. Married couples have 12 months from the date of divorce. If a married or de facto couple fails to file for orders within those respective periods, then they will need to seek the leave (permission) of the Court before they are allowed to proceed. The parties will need to:
    1. provide good reasons for why they were not able to finalise their property settlement within the limitation period; and
    2. satisfy the Court that they would suffer financial hardship if the Court did not allow them to proceed.
  1. Binding Financial Agreements (BFAs), more commonly known as pre-nuptial agreements, can be made by people:
    1. intending to marry – section 90B of the Family Law Act 1975 (Cth);
    2. intending to live in a de facto relationship – section 205ZN of the Family Court Act 1997 (WA);
    3. are married and not separated – section 90C of the Family Law Act 1975 (Cth);
    4. are married and separated but not divorced;
    5. are living in a de facto relationship and not separated – section 205ZO of the Family Court Act 1997 (WA);
    6. were living in a de facto relationship and have separated – 205ZP of the Family Court Act 1997 (WA);
    7. are divorced – section 90D of the Family Law Act 1975 (Cth).
  1. You can run but you can't hide! – All parties to a family law matter must provide full and frank disclosure. The parties must disclose all documents and information which may be relevant to the dispute. There is no "trial by ambush" in Family Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Simon Creek
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