Family Lawyer - 8 Common Myths About Divorce

When talking about family law issues, it seems as though everyone has a personal anecdote or piece of advice to share. However, while they are good intentions, such information can often lead to misconceptions about family law generally, a person’s entitlements, the legal costs and proceedings. Hence, a family lawyer can help navigate legal complications to avoid any misconceptions.

Infact, time and time again, family lawyers have the responsibility to clarify any misunderstandings coming from others with past experience, non-family law professionals, or even the latest legal television series. While personal experience is extremely valuable, every case is different. Your personal circumstances will determine your final outcomes.

Hence, when you try to negotiate or go ahead with the separation process on the basis of false or incomplete information, it can lead to inappropriate outcomes. In fact, in many cases, it may even result in steps taken early, which can prove to be detrimental to achieving the ultimate goal.

However, to avoid such outcomes and assist parties in getting the separation process on the right track, we’ve listed some of the most common myths about family law in relevance to separation and divorce.

Can I legally separate with a family lawyer?

In legal terms, there is no such process called ‘legal separation’ in Australia. Hence, it’s not necessary for either party to move out of a shared home. In fact, in many circumstances, parties can live separately under the same roof.

The criteria, however, to determine when parties separate is the communication of intention. Either party must communicate their intention to separate, while the other must then act on the intention. In many cases, it can give rise to disputes and other complications regarding the date of separation due to the different perceptions of the parties. Hence, it is important to note the details in case of a dispute later.

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Getting a divorce implies financial settlement and custody cases

A divorce, in itself, can include many legal complications, especially when there are children or significant assets involved. However, a divorce doesn’t necessarily deal with property settlement or other related parenting issues. Having said that, it’s important to note that the legal decision to file a divorce will impact these factors and more, depending on your personal situation.

Other than in exceptional circumstances, parties are eligible for divorce only after being separated for at least 12 months. Moreover, a divorce is a standalone application to the court to legally terminate the marriage.

When it comes to other relevant factors, such as parenting, custody, and property settlement, please note that they are very separate processes. In many cases, it might not even be necessary to file an application to the Court. Instead, you can deal with these issues any time, with a family lawyer either prior to or after a divorce.

Nevertheless, we recommend seeking legal advice from a family lawyer before you proceed with the divorce to discuss your legal outcomes on relevant matters. It is important to note that divorce is a legal process and will include time restrictions. One of which states that you must file any application to the Court in relation to financial matters within 12 months from the date of the divorce.

Any assets you had before the relationship won’t be included in the claim

At the time of property settlement, when the Court announces its final decision, any assets you own will be a part of the asset pool available for division. This is the case even if it occurs a few years after separation.

If one of the parties held assets before the relationship or is the recipient of an inheritance, these assets will also become a part of the asset pool. In fact, the Court will consider them as the party’s contribution. However, it will likely result in them receiving a greater percentage, depending on the value of the asset and the length of time since they received it.

Again, it is dependent on personal circumstances. Financial assets and liabilities will vary with each case and may involve legal complications. Hence, it’s always a good idea to clarify such issues before moving forward.

Property settlements are equally divided, or whoever has the kids will receive more

There is no pre-determined percentage division of assets in property settlements in Australia. Each case is unique with different circumstances. Hence, there are numerous factors that can impact the final outcome, such as –

The division of the asset pool depends on the value and nature of the assets
The financial and non-financial contributions of either party – also as a parent and homemaker
Length of marriage, ages and arrangements for any children, state of health and income earning capacity of each party

Clearly, there are various factors involved, many of which may even arise depending on personal circumstances. Hence, it is important to discuss your case with a family lawyer and evaluate your property settlement before finalising your divorce.

A new partner can make a property claim

Many people are confused about the rights of de facto couples. However, they have almost identical property rights as married couples under Australian family law legislation. It is important to note that this isn’t automatic, and there are certain criteria for eligibility in the case a de facto partner wants to apply for a property settlement, including –

First and foremost, the parties must exist in a de facto relationship, according to the Family Law Act 1975. It implies that the couple is living together on a genuine domestic basis. However, the assessment of the existence of a de facto relationship can involve various factors.
The parties must be in a de facto relationship for at least two years, or
There must be a child in the de facto relationship, or
One of the parties to the de facto relationship has made substantial contributions. Hence, denying a claim would result in serious injustice.
They satisfy the relevant geographical requirements.

Any assets held in a company or trust will not be included in a property settlement claim

Such assets will be a part of the property settlement claim. In the case a party has control of a company or trust and holds an interest as a shareholder, then the Court will consider those assets as a part of the asset pool in a property settlement.

Although, some cases may involve third parties. At this point, it may become more complicated. Hence, the Court will have to look into the structure and roles in the company or trust to determine whether these assets should be a part of the property settlement. In addition, the Court might consider the assets as a ‘financial resource’ to one of the parties, which will still impact the division of the assets.

Children can decide who they want to live with once they are 14

family lawyer In Australia, there is no fixed age at which a child is eligible to decide where they want to live and whether or not they want to see either of their parents. Instead, taking personal circumstances into account, the Court is responsible for making such decisions in the child’s best interest until they turn 18.

However, the Court will definitely take the child’s view into account as one of the deciding factors. At the same time, the Court will weigh the child’s opinion based on their maturity and level of understanding, along with any other relevant factors.

Moreover, an independent expert will convey the child’s views. It can be a family consultant or independent children’s lawyer. The reason is that children are not directly a part of Court proceedings and cannot give evidence. Hence, another professional has to represent them in legal matters.

However, it is important to note that the Court also recognises that older children are less likely to cooperate with orders they don’t want, and this is a significant factor when discussing their future.

Getting a family lawyer means going to Court

Lawyers definitely have a professional obligation to exhaust all potential opportunities for resolution before issuing a court application. While the preferable situation is resolving disputes without court, sometimes a court application can be the most cost-effective and efficient option. It’s either for urgent issues or non-cooperation by other parties when negotiating a resolution.

Moreover, engaging in a process where Court is not an available option can often result in a situation where the less empowered or informed person may have a disadvantage.

Talk to a United Legal Family Lawyer Today

While situations like such may seem overwhelming, it is important you get the right information from legal professionals for the best possible outcome. Here at United Legal, we are dedicated to your legal rights. Our team of experienced lawyers will have a detailed consultation to ensure that you’re aware of every legal option you may have.

Moving on, our family lawyers navigate the complicated process, gathering all the necessary documents and pieces of evidence you may need to build your case. Moreover, we work on a no-win-no-fee basis to ensure financial limitations are never a hurdle in your legal rights!

Talk to a United Legal lawyer today!