The law is a tricky thing and can quite often get confused. Many family law myths are spread like ‘Chinese Whispers’ and often, what you have heard is only half of a much greater story.
Below we answer five of the most common family law myths.
1. My wife will get everything in our property settlement because women are treated better than men.
a) Myth
In family law, there is no ‘one size fits all’ approach, as each matter is very different from the next. The Courts look at a range of different factors when considering what is just and equitable for each party.
The magic word in family law is ‘contributions’. The Court looks at what both of the parties have contributed to the relationship. This includes both direct and non-direct, financial and non-financial contributions by each party to the acquisition, conservation, or improvement of any of the property. After considering this, the Court will then determine what percentage of the property each party is entitled to.
This figure can then be adjusted when the Court considers the ‘future factors’. These include things such as health and capacity to work, the income of the parties, who primarily cares for the dependent children and many more.
The Court considers the role you play in the relationship rather than the gender of each person.
2. All the property is in my Husband’s name so I will receive nothing
a) Myth
The Court will consider all of the property owned by the parties, both jointly and separately and even if owned by a Company or a Trust. Initially, the Court is not concerned with the ownership of the property rather, they are trying to ascertain the size of the entire ‘property pool’.
The Court will then look at contributions as referred to in myth number one.
Non-financial contributions are just as important as financial contributions when determining a property settlement.
3. I have to go to Court to get a good outcome
a) Myth
The ultimate goal of your solicitor is to get you the best outcome, ensuring that exorbitant costs are not incurred by you. In some circumstances, Court is necessary, however, less than 5% of all matters where Court proceedings are commenced actually ever reach a final trial.
Some parties require the assistance of lawyers so that amicable settlement communications can occur. Some require a formal mediation so both parties can express their concerns in a controlled environment.
Your solicitor should encourage you to come to an agreement outside of Court, that way both you and your partner can decide the terms of your agreement, rather than having them decided for you by a Judge, at considerable expense.
4. My spouse and I have a written agreement, this will be sufficient
a) Myth
Although you both may have come to an amicable agreement about the division of your property right now, your private, personal agreement, is not a legal document and therefore not binding on either of you.
It is strongly recommended that you finalise your agreement with formal Consent Orders. This is a legally binding document that will be drafted by your Solicitor and filed in Court. This provides you with certainty regarding your property division and is enforceable on both parties.
If you were married and are now divorced, you have one year only from the finalisation of your divorce, to file an Application for Property Settlement.
If you were not married and in a de-facto relationship, you only have two years from the date of separation to lodge an Application for Property Settlement.
5. I am entitled to everything I brought into the relationship
a) Myth
There is no guarantee that you will receive the exact same property that you brought into the relationship. The Court will consider the length of the relationship and the contributions throughout the relationship.
If you were in a very short relationship (a few years), it is more likely that you can argue that you will retain the same property you brought into the relationship.
However, if you are in a long term relationship there are several different factors which apply meaning it might be less likely you will walk away with everything you brought into the relationship.
If you need, or someone you know needs, assistance with any family law matters, please contact one of our friendly and experienced family law solicitors.