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Family Law Myths Busted

Written by Joseph Schepis
30 August 2021

We have to wait 12 months after our divorce to finalise property matters

For couples that are married property matters can be resolved at any time before or after separation.  There is no need to wait.  If there is a divorce order the divorced couple have 12 months from the date of the order to finalise their property and financial matters without obtaining permission from the court.  It is strongly recommended that financial matters be resolved as soon as possible after separation as delay usually causes increased costs because of unravelling post separation transactions.  Defacto couples have two years from the date of separation to finalise their financial affairs.

It is only the property existing at separation which is divided

The property at separation is only the starting point.  Even property acquired after separation including by way of gift, inheritance or a windfall such as a tattslotto win can come into play and have a bearing on a property settlement.

Because our marriage was long property is divided equally

Not necessarily. Regardless of the length of the relationship or marriage the court goes through the same four step process to achieve a property settlement which is considered “just and equitable” (i.e. fair).  Even in a very long marriage there may be factors which result in property being divided other than equal.  For example a party may have made a significant contribution either at the beginning of the marriage, during the marriage or post separation.  There may be other factors such as health issues which may result in a property settlement not being equal.

Because we were married our property will be divided equally

The fact of marriage itself does not result in property being divided equally.  Whether the marriage is  of a short or long duration, the court would need to apply the four step process to ascertain what a fair outcome should be.

Related Article: Divorce in Australia: Who Gets What?

Property owned by a company or trust is excluded from any property settlement

The Family Court can lift the “corporate veil” and look into the ownership and control of property registered in the name of a company or trust.  If the court concludes that a party to a marriage/defacto relationship has effective ownership or control of property through a company or trust then that property will come into consideration in effecting a property settlement.

If parties agree on a property settlement they don’t need to involve lawyers

Although it is not necessary for lawyers to become involved in a property settlement, it is critical that any property agreement be formally documented by way of either consent orders (orders made by agreement by submitting documents to a Registrar of the Family Court without the need for either party to attend) or by executing a Financial Agreement in which case both parties need to obtain advice from independent lawyers.

Because superannuation is in my former partner’s name it belongs to them and I have no claim to it

This is not necessarily correct.  Although superannuation entitlements may be held in the name of a party to a relationship a court can make orders or a financial agreement can be entered into to give effect to a superannuation split.  A partner may have a right to claim superannuation benefits belonging to their former spouse depending on the length of the relationship and other factors that need to be considered in undertaking the four step process.

We need a formal document or declaration to become legally separated

Separation is a matter of fact and you do not need a formal document to prove it.  Separation occurs when one party communicates to the other their intention to end the relationship.  Many couples are unable to physically separate and separation can take place under the same roof as long as the intention to separate is communicated and then given effect by the parties living separately and apart under the same roof.

Once court proceedings are commenced a judge has to decide the outcome

This is incorrect.  In fact the court encourages parties involved in litigation to attend various forms of dispute resolution in an effort to minimise the issues in dispute or to resolve them.  In parenting matters the court requires the parties to attend mediation.  In property matters the court requires the parties to attend a conciliation conference or private mediation.  At each and every court event the parties and their respective lawyers are encouraged to focus on the issues in dispute and explore opportunities for resolution.  It is the courts view that it is preferable for the parties to resolve matters than for them to be litigated and determined by a judge.

Because I was the breadwinner and my partner stayed at home I should get more (or she/he should get less)

The court views the efforts of a partner who stays at home, looks after the children and engages in home duties as equally important to the effort of income earned by the breadwinner.  The court generally views contributions made by the breadwinner equal to those of the homemaker and parent for the purposes of assessing contribution, especially in long relationships.

Getting a divorce is expensive

A divorce itself is not expensive and the fees are fixed including a filing fee payable to the court.  A divorce can cost anywhere between $1,500 and $2,500 depending on whether there are concessions for the filing fee or children.  Resolving by way of litigation for property or parenting matters can take one to two years and cost many tens of thousands of dollars depending upon the issues in dispute and the complexity of the matter generally.

Related Article: How Much Does a Divorce Cost in Australia?

To arrange your free initial consultation with one of our experienced solicitors, contact Pearsons Lawyers today on 1300 699 688 and “know where you stand”.

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