When you are entering into family law proceedings, whether it be parenting, property or divorce, there are always a number of myths floating around that may misinform you about the process, and about what you are entitled to. Some of the more pervasive misconceptions include the idea that ‘the family law court favours women’ and that ‘all family law disputes must go to court’.
In the following post, we look at five popular untruths surrounding family law, based on misconceptions we’ve heard from our clients.
Myth – All family disputes go to Court
Did you know that statistically in Australia, only about 5% of people who have a marriage or relationship breakdown end up in court? This is a popular misconception that is easily proven false, as it is now mandatory to seek mediation or family dispute resolution prior to attending court. Families in the midst of separating are encouraged to use family mediation to help resolve their disputes about children and property, instead of using the family law courts.
Myth – The family law court favours women
This rather popular myth has been permeated by individuals who believe that Family Court judges always favour the mother in parenting cases. However, there is absolutely no legal ground that says that children should be taken care of by their mothers. The Family Law Amendment (Shared Parental Responsibility) Act 2006 says that when the proceedings for making parenting orders begin, the court works with the assumption that it is in the child’s best interests to remain connected to both of their parents. Being a mother or father makes no difference.
Myth – Property is always divided equally
There is no 50/50 rule in family law property matters, nor is there any mathematical formula for dividing property between parties. The way that property is divided is very much a discretionary decision based on a number of factors that are set out in the Family Law Act , which essentially only act as a guideline.
While an equal division of property may appear fair, it is often not the case, as the person who would be worse off in one of these property divisions would be the person who sacrificed time and earning capacity to care for children. The longer this person remained out of the workforce, the more ‘unfair’ a 50/50 division of property is for that person, as it rarely restores that person to an earning capacity equal to that of the partner who continued to work.
This economic reality is acknowledged by section 75(2) of the Family Law Act, and examines the future needs of both parties. A comparison is drawn between them as to who may have a greater need as a consequence of the relationship or marriage. The party who is found to have greater need is given an extra share of the property in recognition of that need.
Myth – We didn’t live together that long so they get nothing
In a similar vein to the previous myth, people seem to think that even if they are married, if the marriage doesn’t last more than two years, then they get no share of the other party’s assets. While this may ring true for de facto couples who never married, have no children together, and have made no significant financial contributions to each other – it is not true for people who have married.
The share that one party receives is based on their contributions to both of the parties property. However, it is extremely rare that a spouse’s property settlement entitlement is 0%. Even if you two were living together for less than two years, the court must still exercise its discretion and apply the 4-step property settlement process.
Myth – The other party can’t touch my business/property because it’s not in my name
This is false! Many individuals wrongly believe that their significant other can’t touch their business or property interests in the event of separation because a property or trust owns them. This is incorrect, as essentially in family law, property includes anything to which a party has an entitlement to legally or beneficially. Just because your property isn’t under your name, doesn’t mean that it is out of reach to your spouse.
If you have questions about how to make your agreement before a divorce both legal and enforceable, call the Family Law department at Owen Hodge Lawyers at 1800 770 780 to schedule a consultation. We look forward to working with you.