Australia: 5 common family law myths, misconceptions and inaccuracies

Last Updated: 1 February 2018
Article by Danielle C Hadida

Myth #1: "We were married so we should split everything 50/50"?

This is probably the most common family law myth we hear. There is no rule or requirement that any separation, any married or de-facto, has to result in a 50/50 division. In determining any split, the Family Court will consider:

  • the financial contributions each party made to the acquisition of property;
  • the contributions each party made as parent and homemaker;
  • any non-financial contributions made by either party; and
  • the future needs of both parties.

Myth #2: "They cheated on me so I should be entitled to more".

Australia is a "no-fault divorce" jurisdiction. This means that moral issues such as infidelity will not impact the overall property settlement or determine who children of the relationship are to live with.

Myth #3: "They need me to agree to get a divorce".

Both parties do not need to consent to get a divorce. You can object to a divorce application by filing a Response to Divorce Application however the objection will only be upheld if:

  • you and your spouse have not been separated for a period of 12 months;
  • there was not a valid marriage; or
  • the court does not have the jurisdiction to hear the application.

If the procedural and legislative requirements have been met, it is virtually impossible to object to a divorce application. Whilst you and your spouse can file a joint application for divorce one party can file the application solely as well.

Myth #4: "We haven't divorced so I don't have to sort out finances yet".

Property settlement orders can be made at any time after separation. It is important to remember that there is a 12 month time limit for you to commence proceedings in the Family Court which starts from the day your divorce order comes into effect.

We usually recommend that your property settlement matters are finalised either before or at the same time as your divorce to ensure that you remain within this time limit.

Myth #5: "Kids should live equally with each parent".

The paramount consideration in all parenting matters is to determine what is in the best interests of the child. Whilst the court may consider whether an equal shared arrangement is in the best interests of the child or children, this may not always necessarily be the case.

These myths often arise from relying on the internet, friends or family members for information relating to your family law matters. It is always best to be informed and get your facts from an experienced family lawyer.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

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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Danielle C Hadida
 
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