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When it comes to family law in Australia, don’t believe everything you hear or read. It is common place for facts to be misconstrued, either because of misunderstandings or highly emotive reporting of only one side of the story.
In this article, we’ll shed some light on the most common myths and misconceptions about separation, divorce, property settlements and parenting arrangements (previously referred to as “child custody” disputes).
Divorce Myth 1
Your spouse must agree to the divorce in order for you to proceed.
Reality: You do not need the other parties’ consent or cooperation to obtain a divorce. There are a couple of different ways to initiate divorce proceedings in Australia. You and your spouse can do so together by filing a joint application, or you can file an application on your own. There are only limited circumstances where a person can file a Response contesting an Application for Divorce; examples include where parties have been separated for less than 12 months or if a valid marriage never existed.
Divorce Myth 2
The reason for your marriage breakdown, such as infidelity, is relevant in your Divorce proceedings.
Reality: Australia has “no-fault” divorce laws, which means the reason for the marriage breakdown is not relevant. The only grounds for divorce are that you have been separated for 12 months and the marriage has irretrievably broken down with no likelihood of reconciliation.
Property Settlement Myth 1
When your marriage ends your property is divided equally between you.
Reality: The Court assesses each case on its own facts and there is no rule about a 50/50 split. The Court considers numerous factors when determining how much each spouse receives. This includes assessing each party’s:
- financial contributions to the acquisition or preservation of property;
- non-financial contributions including as a parent and homemaker;
- other factors relating to your future needs like age, health, income.
Property Settlement Myth 2
You must wait until after you get a Divorce to negotiate a property settlement.
Reality: You can negotiate your property settlement at any point after you are separated and prior to Divorce. However, you should be aware that once you’re divorced, you only have one year in which to resolve any outstanding property matters.
“We have an Agreement” Myth
We have an agreement and wrote it down so he/she cannot go back on that now!
Reality: In both parenting and property settlement matters, it is not enough to put an agreement in writing if you want to ensure the agreement is binding and avoid one party changing their mind. For it to be legally enforceable, you must have the agreement enshrined into a consent order sealed by the Court (or in some unique circumstances, a Financial Agreement in property settlement matters can also be used).
Family Violence Myth
I don’t have to let my spouse see our children if there is a history of violence between us.
Reality: Even where there has been family violence between parents, children still have a right to spend meaningful time with each parent (provided there is no unacceptable risk of harm to them). Every case is determined on its own facts. Even where there may be a history of harm, the Court may issue an order for supervised time (previously referred to as “supervised visitation”).
Parenting “Custody” Myth 1:
I do not need permission to take the children out of the country.
Reality: If you want to take your child/children overseas during school holidays or for any other reason, you should always get permission from the other parent. Specifically, you must get the written consent of the other parent where you have existing Orders relating to parenting, even if the trip is in your allocated time with the children. Absent written agreement from the other parent, you must apply for an order from the Court that allows you to do so. Failure to do so can carry serious penalties including imprisonment.
Parenting “Custody” Myth 2:
The children can live with whomever they please.
Reality: A child’s wishes are not determinative. When assessing whether to give any weight to a child’s wishes, the Court must consider the maturity of the child and whether they understand the implications of their wishes. The Court will make its decision based on the best interests of the child and wishes are only one factor which the Court may (or may not) give weight to.
Parenting “Custody” Myth 3
One parent or the other will always have limited time with the children.
Reality: The Court’s primary concern in parenting matters is what arrangement is in the best interests of the child. There are a wide range of considerations the Court must take into account (“equal time”, “substantial and significant time” and “domestic violence” form part of these considerations). There is no guarantee that you will have equal shared care (previously known as “equal custody and/or visitation”). If it’s not reasonably practical or possible for your child/children to spend equal time with each of you, or if it is not in their best interests, the court will look at other arrangements.
Child Support Myth
I don’t have to pay child support because my spouse and I have equal shared care.
Reality: Unless you have a Binding Child Support Agreement completed by lawyers, the amount of child support each of you must pay is determined by the Department of Human Services (previously referred to as “the Child Support Agency”). The Agency uses specific criteria when carrying out the assessment including your respective incomes. Even where you have equal care, if there is a significant income earning disparity, there is likely to still be an assessment of child support issue.
With so much misinformation readily available through social media, pop culture and even the mainstream media, it’s important to get proper legal advice pertaining to your specific circumstances following separation. To schedule an appointment to learn more about how we can help, contact our Family Lawyers Rockhampton today.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
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