7 things you ought to know: common misconceptions in Family Law

March 2019

By Lisa Wagner & Prue Hawkes

Separation is a confusing time and there are a lot of people out there who want to throw in their “two cents”. Support after separation is great, vital even, but when it comes to what the law says it’s important to get it right.

In this article we help myth bust a few of the common misconceptions that come from getting advice on Facebook or Joe Bloggs down the road.

  1. You don’t have to be divorced to get property orders

 

A lot of people seem to think that divorce and property orders should go hand in hand. Or that you need to be divorced before you can get property orders. Although as Family Lawyers we think it is best to wrap everything up at once, you don’t need to be divorced in order to get property orders.

 

People often refer to the “12 month rule”. This refers to the length of time required by the Family Law Act that you need to be separated before you can get divorced and the time after being divorced from which you can seek property orders. You can be separated forever and never get divorced. You can also apply for property orders whilst you are still living together or two minutes after you leave.

 

  1. Just because your name is not on the title doesn’t mean you’re not entitled

 

There is a common view that if parties had no joint assets there should be no distribution of the property. The Family Law Act gives Courts the power to deal with any asset or interest belonging to either of the parties or jointly. If the property has all stayed in one person’s name and the other party has no access to the property that does not preclude them from an order that might give them access to the property. This flows into another common misconception people often have about parties to a relationship who stay at home…

 

  1. Just because you never worked doesn’t mean you won’t get part of the pie

 

The Family Law Act sets out a range of matters to be considered when deciding how the assets of a relationship should be divided up. Significantly, the contributions of each party need to be considered. The Family Law Act clearly states that contributions are not just monetary, they can be about home maintenance or improvements, parenting or home maker. Each case will be decided differently but just because you never worked definitely does not rule you out.

 

 

  1. You can be separated and divorced even whilst living in the same house

 

In Sydney’s current environment it can be hard enough finding the money to support a family living under one roof with two salaries, let alone trying to manage two households. More and more we are noticing that people will continue to live in the same house after they separate for financial reasons or because it is easier on the children. Both of these reasons are totally valid.

 

As mentioned above, you need to have been separated for a period of 12 months before you can apply for a divorce. “Separation” is not defined solely by one person moving out. The Court takes into consideration factors like sleeping arrangements, sex after separation, care arrangements for the children and public perception of your relationship when determining whether or not you have been separated for 12 months.

 

  1. Mum doesn’t automatically get “full custody”

 

The approach of Courts in relation to who children should live with and how that should be determined has changed dramatically over the last few decades.

 

First and foremost, the Court doesn’t talk about custody anymore, they talk about who the children should live with or spend time with. Secondly, the factors the Court needs to consider are far more extensive than ‘who was the primary carer during the relationship’, whether this was mum or dad is important but not the deciding factor. The most important thing the Court wants is for the child to have the benefit of a meaningful relationship with both parents. How this will look will vary case to case but there is no presumption that mum automatically gets primary care.

 

  1. Equal shared parental responsibility does not mean equal time

 

The Family Law Act addresses parental responsibility. Children have rights, parents have responsibility. There is a presumption that it would be best for children if their parents could share parental responsibility and consult about major issues in their lives. The Family Law Act goes on to say that if an order is made for equal shared parental responsibility they need to consider whether equal time is appropriate but these are not the same thing and one does not determine the other.

 

Where an order is made for Equal Shared Parental Responsibility the people sharing the responsibility are to consult each other about major long-term issues concerning the children and make a genuine effort to come to a joint decision about that issue. Many parents who do not spend equal time with their children will have an order made for Equal Shared Parental Responsibility, which puts an onus on the parents to discuss things like schooling, religion, health, name and living arrangements where either party might seek to move.

 

  1. Property orders after separation are not guaranteed

 

Up until recently there was a prevailing wisdom that after separation everyone would get a piece of the pie. The High Court has recently clarified that you cannot assume that just by nature of a separation there should be any adjustment of property interests. This might be because each party has about what they should have in their own names, or because one of the parties has not contributed in a way that would justify an alteration. What’s important to consider is whether an alteration of property interests is ‘just and equitable’ this is determined by the various factors set out in the Family Law Act.

If you are recently separated or have a family law enquiry we invite you to contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss you matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you work out the fact from fiction during this difficult time.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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