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Tony, Michael and David Partners at ABKJ
ABKJ Lawyers

Setting The Record Straight: Family Law Myths – Part 2

There are many more misconceptions about Family Law and, in particular, property settlements and child arrangements.

In part 2 of our Setting The Record Straight article we have debunked more myths and reveal the truth. In case you missed it, read Part 1 here.

1

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.

2

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.

3

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.

4

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.

5

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.

6

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.

7

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.

8

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.

Because no two matters are the same in family law, we would recommend that you seek professional legal advice. Should you have any questions about your family law matter, please do not hesitate to contact ABKJ Lawyers on 07 5532 3199.