There are many myths and assumptions about what happens when you are going through a divorce. Our handy guide dispels the myths about Family Law and lets you know what you can really expect.

If you are in the unfortunate situation of going through a break-up you have probably heard all sorts of ‘advice’ from well-meaning friends and family.

Family and friends are a great source of emotional and practical support when you have separated, however proper legal advice from a professional is essential, so that you are aware of your rights. Being properly informed can help you to finalise your property affairs and come to workable arrangements for the ongoing care of your children.

In this article, we clear up some common of the most common myths in family law matters. The information is general in nature only. It is important to be guided by expert advice when resolving your family law matters. Even if you and your ex-partner are amicable, it is wise to legally finalise your property affairs so that you can both move on with your financial lives.

Myth #1: The Court will order that the children  spend equal time living with my ex-partner and me

Not necessarily. The concept of equal shared parental responsibility was introduced into the Family Law Act 1975 (Cth) to encourage and acknowledge the benefits of shared parenting after separation. Equal shared parental responsibility means that each parent is jointly and equally responsible for significant long-term matters concerning their children. This includes decisions about their health, welfare, education and religious and cultural upbringing.

However the presumption of equal shared parental responsibility was repealed in October 2023, and it will only be ordered by the Court if it decides it is in the best interests of the children to do so.

Please also note that the above concept is distinct from whether or not the children will spend equal time living with each parent. Whilst the Court must consider the children spending equal or significant time with each parent, it is not a ‘given’.

The Court has an overriding obligation to consider the best interests of the children and a range of factors will influence its decision. A practical approach must be taken regarding what is realistic in terms of family dynamics, work commitments and other responsibilities. The Court will only make orders forf equal living arrangements if the Court is satisfied that those arrangements are practical and in the best interests of the children.

Myth #2: We both keep our separate superannuation accounts

This is not necessarily so. Superannuation is treated as property and forms part of the asset pool for consideration after a relationship breakdown.

The splitting of superannuation between married or de facto partners may be by Court order, superannuation agreement, or included in consent orders or a financial agreement.

Various steps are involved – the parties will need to obtain information from the relevant superannuation fund, a valuation, and sound advice before a splitting arrangement can be finalised. Once the fund is split, a separate account is created and the new fund remains subject to existing superannuation laws.

Different types of funds are valued in different ways. The laws relating to superannuation splitting are complex and must be considered in the context of other non-superannuation assets in the asset pool. Comprehensive legal and financial advice is recommended when determining whether a superannuation split is appropriate.

Myth # 3: You can’t divide your property until you get a divorce

This is incorrect. The timetable for a divorce is different to the timetable for a property settlement. Couples must be separated for 12 months before getting a divorce and may commence negotiations to finalise a property settlement at any time before, or within 12 months after, a divorce is granted.

The finalisation of a divorce triggers a 12-month limitation period within which to commence proceedings for a property settlement.

Separated couples who were in a de facto relationship have a 2-year timeframe, after separating, within which to commence property settlement proceedings.

Myth #4: The bread-winner should have a greater entitlement to the asset pool

This will frequently not be the case. In addition to financial contributions, the non-financial and indirect financial contributions of a party are included when determining a property settlement. These contributions are not given a dollar value, however they will be important when making a percentage adjustment to the asset pool.

Non-financial contributions are contributions considered to have assisted in increasing the asset pool. They include the care and welfare of children, management of the household and finances, and labour used to improve or conserve the home (such as renovating or landscaping). For example, a partner who stays home to raise children is considered to make an indirect financial contribution by enabling the other partner to contribute financially through his or her employment or business efforts.

In the well-known case of Whiteley and Whiteley (1992) FLC 92-304, the wife’s efforts of modelling, critiquing, discussing and evaluating Brett Whiteley’s artwork were considered a significant non-financial contribution and inspiration to his financial contributions to the marriage.

Myth #5: Family law matters always end in a court-room battle

Despite Hollywood images of ex-couples embroiled in court-room combat, most family law matters settle without the parties needing to attend Court.

Commencing proceedings for the division of property will deplete the available assets, and often contributes towards anxiety. Court should be a last resort and the Act requires that parties make genuine efforts to resolve disagreements and participate in dispute resolution before commencing proceedings. The objectives of these ‘pre-action procedures’ are to:

• encourage early disclosure through the exchange of information between the parties;
• minimise the need for legal action by reaching an early settlement;
• build a process to resolve a matter quickly and to limit costs; and
• if proceedings are necessary, assist in their efficient management by identifying the actual issues in dispute.

Conclusion

The Court plays a discretionary role when deciding family law matters, and the likely determination that a Court would make should always be considered when negotiating and agreeing on an out-of-court settlement.

If you or someone you know wants more information or needs help or advice, please contact Alison Brown or contact us on (02) 9923 2321.