Setting The Record Straight: Family Law Myths
There are many misconceptions about Family Law and, in particular, property settlements and child arrangements. The majority of the tales are sourced from online blogs or people who usually start the conversation with “take it from me, I know”.
Key Takeaways
- Australian family law is a “no-fault” system, and outcomes focus on future needs and (for parenting) the child’s best interests.
- Property settlements depend on contributions and circumstances — not whose name an asset is in, who “earns the money”, or who is in possession of an asset.
- Many matters can be resolved without Court, and options exist to formalise agreement (including Consent Orders and Binding Financial Agreements).
- De facto couples can have the same rights as married couples, and separation (including “separation under one roof”) is not defined by who moves out.
1. The party at fault for separation should be punished
In Australia, legislation establishes a ‘no-fault’ jurisdiction. This means that if a party is responsible for the breakdown of a marriage (e.g. due to infidelity), they will not be punished.
When making orders for finance or children, the Court will not consider who is at fault. Instead, they will identify each party’s future needs and what arrangements should be made for any children of the relationship. Any parenting arrangements must be made with the child’s best interests in mind.
2. Women always ‘win’, men always ‘lose’
This is the most common family law myth due to the perception of a “traditional family”. A traditional family is often perceived as the male being the main income earner and the female being the primary carer for the children. Contemporary relationships, however, consist of both partners being employed with similar income-earning capacities.
Each case will be assessed separately when determining the distribution of assets, with matters such as the future needs of the parties considered. The circumstances of the family will also be considered with a view to determining the children’s living arrangements, with the highest priority being the best interests of the child.
If a party has primary care for a child, then they may be entitled to a greater portion of the asset pool as their main responsibility may be to care for the children.
3. The money earner takes all
This is untrue. It is only in very rare circumstances that one party will be entitled to everything. The Court will determine each party’s entitlement in property settlement matters by considering the contributions they have each made to the relationship, as well as future needs of each party.
Contributions consist of both financial and non-financial contributions. Financial contributions include income earned, whereas non-financial contributions include care for the children and maintenance of the house. Special contributions such as inheritances or compensation are also considered.
If the dispute reaches trial, the Court will have discretion to distribute the property in the way considered to be the most appropriate. It is more than likely that contributions will be determined to be equal in a longer marriage.
In a shorter marriage/de facto arrangement, however, the Court may be reluctant to divide the assets equally if one party’s contribution outweighed the contribution of the other party.
4. The alleged abuser in the relationship is entitled to ‘nothing’
If domestic violence is found to exist within the relationship (determined by a court), it is not necessarily true that the abuser is entitled to none of the assets of the relationship, or no time with the child.
However, the Court, in its role of upholding the “Best Interest of the Child” principle, may impose conditions on the alleged abuser’s time spent with the child that they believe to be appropriate, including supervised visits and monitored electronic communications.
5. Natural parents always have exclusive rights
This is far from the truth. There may be circumstances where relatives of the children may be entitled to care for them.
For example, if the natural parents are deceased or are struggling with personal issues, such as addiction or health issues, and are unable to care for the children then it is not uncommon for relatives such as the grandparents to claim an entitlement to care for the children.
6. Separation occurs when someone leaves the house
Nobody needs to leave the house in order to be separated. Living together while separated is known as ‘separation under one roof’. Usually, separation may occur when one party communicates their intention to end the marriage / de facto arrangement.
Separation under one roof can be established by conduct, such as sleeping in separate bedrooms and/or the division of household payments.
7. Property will always be divided equally
The outcome of property settlements usually depends on contributions (both financial and non-financial) made throughout the relationship. It may be detrimental to a party if assets were divided equally.
For example, the Court may order that an unemployed spouse who cares for the children is entitled to more than their former spouse who is employed and earning a stable income.
8. You need to be divorced to commence property settlements
This misconception arises from the fact that people are unaware of the process of property settlements in family law. Property settlements may take place as soon as separation occurs. Divorce is not a requirement to commence and finalise property settlement.
However, should you get divorced and you wish for property settlement to occur, you must commence your proceedings in the Family Court within 12 months of the divorce taking place.
9. Courts will settle disputes for custody of pets
The Court will not settle disputes regarding pets and will not make orders as to which party the pet lives with. Pets are considered as property of the relationship, and will be treated as a part of the relationship’s property pool where property settlement is pursued. Alternatively, you may enter into non-binding arrangements with your former spouse in relation to spending time with the pet.
If a disagreement arises between the parties with respect to those non-binding arrangements, the pet will be dealt with as part of the asset pool and may be given solely to a particular party.
10. Children have final say regarding who to live with and this is a decisive factor for the court.
To an extent, there is some truth to this myth. More weight will be placed on the wishes of older children showing maturity. The Court will also consider other factors when making decisions about the child’s care. If the child is younger, the Court will consider a range of factors to assist them in making a decision. In some cases, the Court may appoint an Independent Children’s Lawyer to assist in making decisions about a child.
The role of the Independent Children’s Lawyer is to assist the Court to make a decision regarding the child’s best interests.
11. The person who possesses the asset keeps it
This is not true. The assets of each party are deemed to be property under Australian legislation. The property of one or both parties is considered property of the relationship.
For example, if a party moves out of the matrimonial house, the house will still be considered an asset of the relationship and may be dealt with during property settlement. A party will not be entitled to property such as a house, car or bank account based on the fact that they are in possession of it, or that it is registered in their name.
12. The other party has no claim to the asset because it isn’t in their name
As mentioned above, regardless of which party is the registered owner of a particular asset, it will be considered part of the relationship asset pool and may be dealt with at the settlement of the property.
Essentially, the asset pool includes all the property of the relationship to be divided. If a party transfers any property that should be in the asset pool into another person’s name then under legislation, the Courts may deem this as an attempt to defeat a claim and they may set it aside.
13. A de facto relationship begins after living with someone for a certain amount of time
Many people believe that a de facto relationship begins after living with someone for a certain amount of time. That myth is untrue. In order to be classified as being in a de facto relationship, the law requires the parties, whether same or opposite sex, to have a relationship as a couple living together on a genuine domestic basis.
To determine whether a couple is in a de facto relationship, the Court will consider the duration of the relationship as well as whether there are any children to the relationship, the nature of the couple’s common residence, the degree of financial dependence between the couple, among other considerations.
14. De facto couples get what they came in with
De facto couples have the same rights as married couples under Australian legislation in relation to the separation of property. If a de facto couple is unable to reach an agreement to distribute their property, they may make an application to the Court for an order. The Court will consider many similar factors as to married relationships when deciding how the property should be distributed.
15. Family law disputes will always end up in Court
This is a perception that many people have about family law. There is a very small amount of matters that will proceed to Court. Most of the time, parties will be able to reach agreements about both their children’s living arrangements, as well as the settlement of their property without determination by the Court.
This can be accomplished in different ways such as Consent Orders, or by a Binding Financial Agreement.
Learn more about Alternatives to Court.
Seek Advice
Because no two matters are the same in family law, we would recommend that you seek professional legal advice from a family lawyer.
Should you have any questions about your family law matter, please do not hesitate to contact ABKJ Lawyers on 07 5532 3199.
FAQs
1) Is Australia a “no-fault” family law jurisdiction?
Yes. In Australia, legislation establishes a ‘no-fault’ jurisdiction. This means that if a party is responsible for the breakdown of a marriage (e.g. due to infidelity), they will not be punished.
2) Do women always “win” and men always “lose” in family law?
No. Each case will be assessed separately when determining the distribution of assets, and the circumstances of the family will be considered when determining children’s living arrangements, with the highest priority being the best interests of the child.
3) Does the person who earns the money take all the property?
No. The Court determines entitlement by considering contributions (financial and non-financial) and future needs. Financial contributions include income earned, and non-financial contributions include care for the children and maintenance of the house.
4) Does separation only occur when someone leaves the house?
No. Nobody needs to leave the house in order to be separated. Living together while separated is known as ‘separation under one roof’, and it can be established by conduct such as sleeping in separate bedrooms and/or the division of household payments.
5) Do you need to be divorced before starting a property settlement?
No. Property settlements may take place as soon as separation occurs. Divorce is not a requirement to commence and finalise property settlement. However, if you get divorced and wish for property settlement to occur, you must commence proceedings within 12 months of the divorce taking place.
6) Will family law disputes always end up in Court?
No. There is a very small amount of matters that will proceed to Court. Most of the time, parties will be able to reach agreements about children’s living arrangements and property settlement without determination by the Court, including through Consent Orders or a Binding Financial Agreement.
