If you’re going through a divorce, chances are you might not want to talk to anyone. But, it’s good to be armed with the facts about family law.
If we separate my partner is automatically entitled to half of our assets when we separate
There is no 'one-size-fits-all' rule when it comes to division of assets. The Family Law Act 1975 sets out a number of factors that must be considered to determine how assets should be distributed after the breakdown of either a marriage or de facto relationship. A few of those factors are:
- Whether the parties had assets before the relationship started
- Whether one or both parties made special contributions during the relationship, such as receiving an inheritance, gift of money or possibly a compensation payment
- The length of the relationship (how assets are divided in a short relationship may be different from a long relationship)
- Whether there are children from the relationship
- How much time the children might spend with their respective parents after separation
- Whether the circumstances of the relationship has affected the income earning capacity of either of the parties
- Each party's age and health
Do keep in mind: These are only some of the issues that are considered; but all of them combined, are important to determine how assets are divided. Obtaining family law advice early will help parties to know where they stand before negotiating a settlement. Read more about separation.
We have to be divorced to have a property settlement
It is not necessary. Parties can negotiate and formalise a property settlement at any stage after they separate and prior to being divorced.
A divorce is the formal process of ending a marriage. Parties cannot apply for a divorce until they have been separated for 12 months. However, once a certificate of divorce is granted by the Court, the parties will only have 12 months from the date the certificate is granted to formalise a property settlement.
In most circumstances, we recommend that parties formalise their property settlement before applying for a divorce. Read more about property settlements.
We signed a statutory declaration when we split the property – that’s legal right?
No! A statutory declaration is not a valid way of formalising a property settlement and is not a binding agreement between the parties.
A property settlement can only be legally binding if:
- The parties apply to a Court with jurisdiction over Family Law matters for a consent order; or
- If they enter into a Binding Financial Agreement.
Do keep in mind: If an agreement has already been reached, the process of legalising the agreements tends to be straight forward and the parties will not normally need to attend court. We recommend that parties obtain legal advice about the best way of formalising their property settlement.
We are entitled to 50/50 child custody
There is an incorrect assumption that when parties separate the law provides that the children will automatically spend equal time with their parents. Whilst this might be a good outcome for some families, it does not work for all.
The Family Law Act provides that the children's best interests are a paramount consideration when the Court makes parenting orders and sets out primary and secondary issues that must be considered when the Court makes decisions about children's living arrangements.
Whilst there is a presumption that parents should have equal shared parental responsibility for their children which means the parents should jointly make decisions about significant issues for the children such as where they live, their health, schooling and religion; this does not mean that the children should necessarily spend equal time between their parents if it is not in their best interests, or it is not practicable for that to occur.
If you are concerned about the long term parenting arrangements for your children we would recommend you obtain legal advice.
Do keep in mind: If you are concerned about the long term parenting arrangements for your children we would recommend you obtain legal advice. Read more about child custody.
I'll only see my kids every second weekend and half of school holidays
Every family is different and there are many variations on how parents might organise parenting arrangements for their children following separation. If children are not spending equal time with their parents, the Family Law Act sets out criteria for the children spending substantial and significant time with their parents; provided it is in the children’s best interests.
The Law recognises that it is important for children to spend time with their parents regularly and it is often beneficial for children to have both parents involved in their daily routine such as kindergarten or school as well as on special occasions that are important to the children and the parents.
It is common for parents to see their children every week, whether that is for a block of nights in one week and having dinner on one or two nights in the other week. Read more about issues involving separation and children.