5 common misconceptions about Family Law

18-October-2019 Family Law By Simone Green

When ending a relationship, you will most likely receive ‘family law’ advice from many well-meaning but unqualified sources either based on their own personal experience, a friend of a friend, or the perilous depths of social media. Streeterlaw Accredited Specialist in Family Law, Simone Green warns of the dangers of placing your faith in such advice as there are many misconceptions and urban myths about who gets what in a property settlement. Every case is different and is heard on its own facts. Ensure you get advice from a family law expert, and don’t chance your future to the amateurs.

5 common misconceptions about Family Law:

1. Everything will be split 50/50

Wrong There is no rule of equal division, nor is it a starting point. The division of property essentially depends on the following factors which are set out in the legislation being the Family Law Act 1975 (Cth) requiring the Court to consider:

  1. Financial contributions of each person
  2. Non-financial contributions of each person
  3. Contributions to the welfare of the family made by each person; and
  4. Future needs of each person

The Court can and does adjust the division of property based on these factors but there is no strict mathematical formula applied. The facts of each case will differ, and the judge has scope to use their own discretion to make further adjustments within a reasonable range, either up or down if necessary, to produce a ‘just and equitable’ result. Just and equitable does not always mean equal.

2. The Courts always favour women

Wrong. The law and the Court do not favour one gender above the other. Same sex relationships and marriages are now recognised by the Family Courts.

While historically, the division of labour often resulted in women carrying the bulk of child rearing responsibilities and career disruption resulting in a disparity of income or earning ability, this is changing and has implications.

The Court must ensure that the division of assets is ‘just and equitable’ in all the circumstances.

3. My partner will be punished for having an affair

Wrong. Australian family law is a ‘no fault’ jurisdiction. No financial penalty applies to the partner who had an affair during the relationship. Evidence of infidelity is unnecessary and irrelevant to the determination of property distribution in the Family Courts.

Family Courts do not compensate for emotional pain resulting from infidelity or other poor behaviour, although there are certain exceptions regarding family violence.

4. Anything I have acquired after separation is mine and my partner can’t get it

Wrong. Property division is assessed on the value of current assets, liabilities and superannuation at the date of the hearing. It is not assessed at separation, although contribution to those later items will be considered by the Court.

5. We don’t need Court Orders if everything is amicable

Wrong There are many benefits in obtaining Consent Orders from the Family Court which finalise an agreement for the division of property. This allows:

  1. Confidence that the matter is final, and no future claim will be brought (with some exceptions).
  2. Stamp duty exemptions on the transfer of real property between the parties to a relationship.
  3. For the splitting of superannuation interests between the parties’ funds.
  4. For enforcement of the agreement by the Court if your ex-partner does not comply with the agreement.
  5. You to avoid going to Court personally as the Application is completed and filed online.

Our specialist team of Family Lawyers welcome your questions, will provide you with clear and concise advice for your individual circumstances and provide real options with a plan towards resolution. Don’t gamble with your future call us today on 02 8197 0105

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