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”.
In this 2 part series we have debunked the some family law myths and reveal the truth.
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.
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.
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 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.
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.
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 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.
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.
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.
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.