Unlike many other areas of law, most people have a basic understanding of family law and broadly what it entails. In fact, it’s a pretty safe bet most people have at least heard terms such as divorce, property settlement, parenting dispute and pre-nuptial agreement.
Family law principles are commonplace in households due to the dramatisation of divorce on television programs, movies and due to the sheer volume of Australians who have been directly or indirectly involved in the family law process. Sadly, everyone knows someone who has been divorced. Because of this, I seldom attend a work function or social event where I do not end up in a ‘deep and meaningful’ conversation with a person about their family law problems or that of one of their friends.
These chats always highlight how stubbornly some family law myths have loitered in our community; despite most of them having never been law in Australia in the first place! Whilst some myths are of great benefit to our community, for example the pool will turn purple if you pee in it, family law myths serve no useful purpose at all. Indeed, family law myths are typically a cocktail of many ingredients, sourced from all around the world.
The main ingredients are:
- 1 x large splash of fictional law based on a 1980s episode of LA Law
- 1 x handful of unrealistically high expectations in relation to entitlement (no basis for this required)
- 1 x cup of advice from a friend’s sister who told her ‘what she got when she divorced’
- 1 x pinch of outdated, gender-based rubbish
- 1 x large slice of advice from a cousin in South Africa or Germany
Although most cocktails may result in a mild (or severe) hangover, family law myths often result in lengthy court proceedings lasting for years. These ingredients almost certainly guarantee litigation because a person entering the family law arena holding ill-conceived and unrealistic expectations, based solely on urban myths and old wives’ tales will almost certainly be at odds with the advice provided by an experienced family lawyer.
For this reason, I thought it might be worthwhile addressing a few of the more common myths I hear on an almost daily basis:
You are in a de facto relationship once you have been living together for 6 months.
(False) A de facto relationship exists as soon as two people are living together as a couple on a genuine domestic basis. Whilst many factors are considered when determining the nature of the relationship, none relate to a specific timeframe.
The question of time is only relevant when it comes to establishing if a person has a right to seek a property settlement after separation. Typically, a person can only make a claim after having lived in such a relationship for two years or more. That said, there are several exceptions to this which would allow a person to seek a property settlement well under two years, for example, if there is a child of the relationship. Like many things, it is really important to get advice about your rights and what you can do to protect your assets.
There is a presumption the children will live with Mum after separation.
(False) When determining a parenting dispute, the paramount consideration is the best interests of the children. The Family Law Act sets out a range of considerations when determining what is in the bests interests of the children; whilst there are numerous considerations, none relate to the gender of the parent. Long gone are the days where it was presumed the mother, as a rule, was better equipped to care for children.
The property will be split 50/50 as soon as we get married.
(False) There is no presumption of equality after separation, nor is there a presumption to wife will get more (another common myth). Rather, there is a well establish process for determining a property that takes into account the assets available for distribution, the duration of the relationship and each party’s financial and non-financial contributions and their ability to support themselves taking into account their financial circumstances after the assets have been divided. Careful consideration and analysis of these factors must be undertaken before advice is provided about a person’s entitlement (or percentage).
The other party can’t touch my property or business because it’s not in my name.
(False) I have been involved in numerous cases over the years where people have wrongly believed that their significant other can’t touch their business or farming interests in the event of separation because a company or trust owns them. The fact is, property includes anything to which a party has entitlement to legally or beneficially. In short, don’t think for a second your property is out of reach from your spouse in the event of separation just because it is not in your name. The only way to protect yourself in this regard is to enter a Financial Agreement (pre-nuptial agreement).