Family Law Myths – Busted! (Part 1)

Like every family, every family law proceeding is unique. Hence, what you have been told by friends, family and colleagues may be misleading; as their situation was or is most likely different to your own. On top of this, there are a number of family law myths that can complicate peoples understanding of fact and fiction going into a family law matter. The following compilation of myths are the most common.

MYTH #1: “I have to agree to the divorce”

Both parties in fact do not need to consent to a divorce. An application of divorce can be made by one or both parties, and in the case of one party wanting to instigate divorce proceedings, the Family Law Act does not take into consideration if the other person does now want a divorce.

You can object to a divorce application by filing a Response to Divorce Application within 28 days of being handed the application for divorce. However, if the court is satisfied that the marriage has broken down irretrievably and that the parties have been separated for at least 12 months, opposition for a divorce is very limited.

MYTH #2: “All family law disputes must go to court”

Not at all, in fact a vast majority of family disputes (95%) are settled outside of court, this is generally encouraged as it is far more cost and time effective, as well as being less stressful for the family. For parenting matters it is now required, except for limited circumstances, that parents must attend mediation, facilitated by a registered Family Dispute Resolution Practitioner, before an application seeking parenting orders can be filed.

Related Article: Is Mediation An Effective Solution For Your Divorce?

MYTH #3: “Property is always divided 50/50”

One of the most common family law myths, however untrue. There is no 50/50 rule in family law property matters, nor a specific formula used for dividing property between the separating parties. In determining the division of property the court will consider:

• The financial contributions each party made to the acquisition of property
• The contributions each party made as parent and homemaker
• Any non-financial contributions made by either party
• The future needs of parties.

Related Article: Property Settlement and Divorce: Key Facts You Need To Know

MYTH #4: “They were unfaithful, so I should be entitled to more”

Australia is a “no-fault divorce” jurisdiction, meaning it is irrelevant and unnecessary to prove who was “at fault” in seeking a property settlement or a Divorce in Australia.

MYTH #5: “The Mother always gets custody of the kids”

A parent does not have legal “custody” over their children in Australia. There is no legal presumption that a child must or should live with the Mother over the Father. Rather, the courts will always look at what is in the child’s best interest (being the paramount consideration).

Stay tuned for next week’s article, where we look at the next five most common family law myths circulating.

Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email info@resolveconflict.com.au