There are a lot of misconceptions surrounding Family Law. Whilst family and friends who mean well are sources of support, they can complicate things by sharing information that is not correct. It is therefore important to get advice early on in the process to avoid confusion and have a realistic mindset.
Financial Separation
Myth 1: All marriages or de-facto relationships end in a 50/50 property division
In Australia there is no presumption that a property division will be split 50:50. This means you do not have an automatic right to 50% of the asset pool.
The percentage outcome depends on many factors including:
- The length of the relationship;
- The financial contributions of either party;
- The non-financial contributions of either party;
- The current and future needs of either party.
The ultimate settlement is determined according to what is “just and equitable” in all the circumstances. Each situation is unique and property settlements can be complex, so we recommend you speak to an experienced property settlement lawyer at West Coast Legal.
Myth 2: We only have to divide the house and transfer the title?
A ‘property settlement’ can be confusing as we naturally assume ‘property’ to just mean physical property, such as a home. However, in law, the term ‘property’ covers a vast number of different assets.
The process of a property settlement involves looking at all the assets and liabilities to be divided, including:
- Cars and boats,
- Furniture,
- Pets,
- Superannuation,
- Savings accounts,
- Shares,
- Cryptocurrency,
- Home loans,
- Credit cards.
If the parties only deal with the house, this does not prevent an ex-partner coming back at a later date to seek property settlement for the remainder of the property pool. This will result in extra cost and stress.
Myth 3: You have to be divorced to do a property settlement
No, parties do not need to be divorced in order to divide their assets in a property settlement. Parties to a de-facto relationship may also do a property settlement if they have been separated for at least 2 years.
To file for a divorce, the parties must be separated for 12 months before they apply. It is important to note that once you are divorced, you only have 12 months to file for a property settlement in the Family Court. A lot can happen in 12 months, it is best to start property division as soon as possible.
If you are already divorced and concerned time may be about to run out, please reach out to our friendly team at West Coast Legal who can offer you legal advice.
Click here to find out more about divorce in Australia.
Child Arrangements
Myth 4: The kids always go to the mother. Fathers don’t have equal time.
In Australia there is no presumption that the child will automatically live with the Mother when parent’s separate. The law states that it is the child’s right to have a meaningful relationship with both parents, as long as it is in the child’s best interest to do so. The paramount consideration in children’s matters is ‘the best interests of the child’, not the best interests of the parent.
Who the children will live with will depend upon on variety factors, including:
- Age of children
- Risk factors
- Travel distance between parents
Myth 5: Grandparents don’t have any rights to their grand kids.
The Family Law Act outlines that it is in the best interests of the child for them to spend time with and communicate with not only their parents, but other people who are significant to their care, welfare, and development such as grandparents. This means that according to Family Law, grandparents do not have an automatic right to have a relationship with their grandchild, but a grandparent can apply to the Family Court for Court Orders especially if they are concerned about the care, welfare, or development of a grandchild.
Click here to find out more about grandparents in Family Law.
Myth 6: All Family Law Disputes go to Court
You don’t have to go to Court! Except in specific circumstances, going to Family Court should be the last resort. The vast majority of couples are able to come to an agreement outside of Family Court, for example through the use of mediation. We can assist you in organizing arrangements for the children’s care and a property settlement without Family Court intervention.
If you are still unsure of something Family Law related or would like to discuss a general Family Law issue, speak to an experienced Family and Property Settlement Lawyer at West Coast Legal today on (08) 9325 334 for a free 15-minute phone consultation, or submit an online enquiry by clicking here.
