There are a number of myths in family law floating around about your rights, the process and what you are entitled to when it comes to separation and divorce.
Read this article where we expose the top 10 myths in family law, based on misconceptions we’ve heard from our clients.
1. The Family Courts favour mother’s over fathers
This is one of the most common myths in family law. In family court, there is no legal presumption that children should be cared for primarily by their mothers. The Family Law Act says that it is in the children’s best interests to remain connected to both of their parents. Whether you are a father or a mother makes no difference. It is the case however that mothers tend to have more overall care of children than father’s do, but this is not always court ordered and more often, it is agreed to between the parties. The most common reason for this is that the care arrangements that were in place before separation, tend to continue after separation, and reflect the roles each party played during heir relationship.
2. That equal shared parental responsibility means a 50/50 shared care arrangement
This is false. Equal shared parental responsibility refers to two parents having an equal responsibility for the making of long term decisions in relation to a child’s health and wellbeing, for example, health, education and religion.
3. I have a right to see my child
A parent does not have any legal rights to see their child in family court. Rather, the children are the ones who have a right to have a meaningful relationship with both parents as long as they are protected from harm and to the maximum extent consistent with the children’s best interests.
4. I have to go to court to get custody of my kids
Mediation with a family dispute resolution practitioner is a compulsory requirement before you can file an application for a parenting order. A section 60I certificate must be obtained and attached to your court application. There are some limited exceptions where mediation is not required, and you should seek legal advice about whether any of these exceptions apply to you.
5. All of the property gets divided as at separation
The asset pool doesn’t freeze at separation, contrary to what most people think. A court must identify the current value of the assets, liabilities and financial resources, that exists, at the date of the hearing or at the time of the agreement.
6. I earned the money so I should get more / She stayed at home so she should get less
The financial contributions of each party during a relationship are considered equally important to contributions by each party to the care of the children, maintenance of the home and unpaid work, such as assisting in the operation of the family business. Where one party’s primary role is to care for the children this has allowed the other party to earn an income, contribute to their super and to increase their income earning capacity.
7. We didn’t live together that long and she didn’t pay for anything so she gets nothing
It is extremely rare that a party is entitled to 0% of the pool even if you lived together for a short period of time. Whether your relationship was short or long, the court must still exercise its discretion and apply the 4 step process to determining the just and equitable outcome.
8. We are already separated so I don’t have to pay her anything
If after separation a party is unable to support him/herself without assistance from the other party, that party has an obligation to support their spouse where they have the capacity to do so. This responsibility exists independent of any obligation to pay child support.
9. I am not separated until I leave the home
You can be separated under the one roof by sleeping in separate bedrooms or where the behaviour of you both makes clear that you are no longer in a relationship with one another.
10. I have to wait 12 months to finalise my property settlement
You can finalise your property settlement from the moment you separate and you should do so sooner rather than later. This is different to divorce, as you have to be separated for 12 months before you can apply for a divorce.
If you have recently separated, and you are finding it hard to separate the myths in family law from the facts, we highly recommend that you obtain prompt legal advice from one of our experienced family lawyers so that you can make smart decisions following separation, that will save you financial and emotional stress. Contact us on 3465 9332 to book a reduced rate consultation and have a confidential discussion with one of our family law specialists in relation to your individual circumstances.