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Common misconceptions about divorce

Divorce is a stressful time for most people and it’s natural that you’d want to keep it to yourself. Nevertheless, being familiar with the facts can save you a lot of stress and heartache down the road.

Misconception: If we separate, my partner is automatically entitled to half of our assets

Fact

There is no one clear-cut rule when it comes to asset division. 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 couple of examples 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 maybe even a compensation payment

The length of the relationship (how assets are divided in a short relationship may differ from a long one)

Whether there are children

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

Remember: 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 and avoid a lot of the acrimony that comes with asset division.

Misconception: You have to be divorced

to have a property settlement

Fact

It isn’t 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.

Misconception: We signed a statutory declaration when we split the property – that’s legal right?

Fact

Not at all. 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.

Remember: If an agreement has already been reached, the process of legalising the agreements tends to be straightforward 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. 

Misconception: 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.

Fact

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, this does not mean that the children should necessarily spend equal time between their parents if it is not in their best interests, or if it is just not practicable.

If you are concerned about the long term parenting arrangements for your children, it is recommended that you obtain legal advice immediately.

Do keep in mind: If you are concerned about the long term parenting arrangements for your children we would recommend you obtain legal advice. AHL Legal have family law specialists who can advise you of probable outcomes and act in your best interests.

Misconception:  I'll only see my kids every second weekend and half of school holidays

Fact

Every family is different and parenting arrangements can be flexible after 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 school as well as on special occasions that are important to the children and the parents.

How AHL Legal can help you

In difficult circumstances like this, engaging the services of a divorce lawyer will clarify a lot of uncertainties for you and help you make sure correct procedures are followed. AHL Legal have family law specialists who can help you with issues such as divorce, asset division and child custody.