Family law myths13 September 2021 Authored by: Tiana Harris | Topics: Family law
Sometimes it’s hard to distinguish fact from fiction when it comes to family law, particularly when we watch a lot of American TV shows.
In this video, CGW family lawyer Tiana Harris busts a few common family law myths and lays down the facts.
Hi, I’m Tiana, and I’m a lawyer here in the family law team at Cooper Grace Ward.
Family law myth 1: If we separate my partner is entitled to half my property
This is most certainly a myth.
Now, while there may be a presumption overseas, it certainly isn’t the case here in Australia that there is a presumption that both parties receive 50 percent of the property pool when they separate.
So, what the court does is they basically have a four step process for a property settlement where they will look at both parties, legal and equitable interests, and then they will decide if they should make an order to adjust those property interests.
If the court decides an order is to be made, basically they’ll look at the contributions both parties make during the relationship, and then they’ll come to a percentage and then after that, they’ll look towards future factors – so, basically how each party will fare in the future, and then that will make an adjustment based on that.
After the court has considered all of these factors, they’ll come to a final percentage adjustment, but it will be no means a presumption from the outset.
Family law myth 2: I have rights as a parent
In the Family Law Act, your children have rights, not the parents.
So, basically the court will decide what’s in the children’s best interests and not the parents.
Family law myth 3: I have to file a divorce before my property settlement
Divorce and property settlement are actually two different issues.
So, for a divorce, you can file for a divorce one year and one day after you separate.
And it’s a relatively easy process where you go online and you file either a joint or a sole application.
Once your divorce has been finalised, you’ll receive a divorce order and basically that means that you can remarry and a time limitation period starts where you’ll have 12 months from the date of the divorce order to finalise your property settlement.
Of course, if you haven’t filed a divorce application, you can commence your property settlement at any time and there’s no time limitation.
Family law myth 4: My partner didn’t work so they should get less property
This is certainly a myth.
The court looks at parenting, financial and homemaker contributions during the party’s relationship.
So, if you were the breadwinner and your partner was the carer of the children, basically his or her contributions will be given equal weight to any financial contributions during the relationship.
We do have clients come in from time to time with quite high emotions because their partner has cheated on them during the relationship and whilst that certainly matters emotionally in terms of family law, it does not really matter because we have a no fault divorce system.
This means that infidelity during a relationship has no relevance in a property settlement or divorce proceedings.
Further assistance in understanding family law and gaining support
If you have any other questions or myths that you wish to discuss, please do not hesitate to contact me or one of the other family lawyers here at Cooper Grace Ward.