If you are involved in a separation, you have probably heard all sorts of stories and even well-meaning guidance from friends and family. Family and friends are a great source of emotional and practical support when you have separated. However, this is not a substitute for independent family law legal advice. Legal advice is essential so you are well-informed and fully aware of your legal rights. Being properly advised will help you make well-informed and strong decisions in finalising your property settlement and/or parenting matters.

In this article, we will clarify some common family law fallacies. It is important to note that the information provided in this article is for general purposes only. We strongly encourage you make an appointment with one of our experienced lawyers to obtain legal advice about your unique set of circumstances.

Myth 1: “The children will spend equal time living with my ex-partner and me”

This is not necessarily true.

The concept of equal shared parental responsibility was introduced in the Family Law Act 1975 (Cth) to encourage shared parenting post-separation. Equal shared parental responsibility refers to each parent being jointly and equally responsible for significant long-term matters concerning their children. This includes decisions about the children’s health, welfare, education and religious and cultural upbringing.

Equal shared and parental responsibility however is often misinterpreted to mean that children will spend equal time living with each parent.

The Court has an overriding obligation to consider the best interests of the children and a range of factors will influence its decision. The Court takes a practical approach in considering family dynamics, work commitments and other responsibilities.

The Court must consider whether it is in the best interests of the children to spend equal or significant time with each parent. The appropriateness of an ‘equal time’ arrangement heavily depends on the unique circumstances of each family. Some factors that the Court may consider include status quo arrangements, safety concerns for the children, the ages of the children, the commitments of both parents, as well as practical considerations such as travel time between residences and schools.

Myth 2: “We both keep our separate superannuation accounts”

This is not necessarily true.

Superannuation entitlements are generally included as part of the matrimonial asset pool available for division between parties following a separation.

The party’s superannuation can be split by order of the Court, a superannuation agreement or through consent orders or a Financial Agreement.

Parties can reach an agreement about final terms of property settlement that may include a superannuation split or not.

Similarly, a Court can make Orders that may include a superannuation split or not. This will depend on the Orders that each party is seeking and the unique set of circumstances of each party.

Comprehensive legal and financial advice is highly recommended when determining whether a superannuation split is appropriate.

Myth 3: “You can’t divide your property until you get a divorce”

This is not true. Parties may commence negotiations to finalise a property settlement at any time – before or after a divorce is granted.

Couples must be separated for at least 12 months before filing for divorce.

It is important to note that the finalisation of a divorce triggers a 12-month limitation period following which parties are prohibited from commencing Court proceedings for a property settlement. Separated couples who were in a de facto relationship have a 2-year timeframe after separating to commence property proceedings.

Myth 4: “The bread-winner should have a greater entitlement to the asset pool”

This is not necessarily true.

In addition to financial contributions, non-financial and indirect financial contributions of a party are relevant when determining a property settlement. Whilst these contributions are not given a dollar value, they are important when considering any percentage adjustments to the asset pool.

For example, a party’s non-financial contributions are contributions considered to have assisted in increasing the asset pool. They include the care and welfare of children, management of the household and finances, and labour used to improve or conserve the home (such as renovating or landscaping). For example, a partner who stays home to raise children is considered to have made an indirect financial contribution by enabling the other partner to contribute financially through his or her employment or business efforts.

Myth 5: “Family law matters end in a court-room battle”

This is not necessarily true. Many family law matters settle without the parties ever attending Court. However, many family law matters also proceed to Court because the parties are unable to reach agreements.

Commencing proceedings for the division of property can significantly deplete the resources of both parties. The Courts should always be a last resort in resolving a family law dispute. The provisions of the Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) (Div 2) 2021 require parties to make genuine efforts to resolve their disagreements and participate in alternative dispute resolution before commencing proceedings. The Court also mandates all parties in a family law dispute to participate in “pre-action procedures”. These are designed to:

  • encourage early disclosure through the exchange of information between the parties;
  • minimise the need for legal action by reaching an early settlement;
  • build a process to resolve a matter quickly and to limit costs; and
  • if proceedings are necessary, assist in their efficient management by identifying the actual issues in dispute.

Dealing with Family Law Matters 

The Court plays a discretionary role when deciding family law matters. During out-of-court negotiations, all parties should consider what determination the Courts would likely make in their circumstances with the benefit of independent legal advice.

If you or someone you know wants more information or needs assistance or advice, please contact us on 03 9857 0099 or email melbourne@maeveobrien.com.au.