While divorce is something that none of us wants to think about, given that approximately 1 in every 3 Australian marriages ends in divorce, it is likely that many of us will experience a divorce in our lifetime. Even in 2015, divorce remains a taboo subject with many people not considering divorce until it happen to them and then find themselves unaware of their entitlements and the processes involved.
Brett Hartley, Director of Hartley Healy and Accredited Family Law Specialist says there are numerous myths that continuously pop up online.
Below you will find a a list of the most common misconceptions Brett has encountered in the media or directly from clients – many of them wives who are unaware of their rights in the instance of a relationship break-down.
MYTH: I have been a stay-at-home mum with no income since marriage therefore I am entitled to nothing.
FACT: This is not correct. The Family Law Act recognises contributions that you have made that don’t just include financial contributions. Your contributions towards domestic and household chores, having children, raising children, and otherwise to the welfare of the family are very important contributions that are taken into account by the Court. In a property settlement, the law recognises that contributions toward children don’t just involve giving birth to them and their physical care. It involves social, emotional, and educational contributions over a long period of time. Also, the law recognises the fact that one parent staying in the home and looking after children frees up the other parent to not only earn an income, but to advance that parent’s career. Therefore, a contribution of caring for the children and staying at home is viewed as an indirect contribution towards the other one’s accumulation of wealth.
MYTH: My wife/husband purchased our house before we were married therefore it will not be included in the divorce settlement.
FACT: This is not correct. The first step in any property settlement in Family Law requires a current date balance sheet of all assets and liabilities that exist at the current date to be taken into account. One must identify and value each and every asset and resource no matter when it was brought into the relationship. It doesn’t mean everything will be divided 50/50 in all cases and you will need to get advice from a specialist Family Lawyer as to your specific entitlements.
MYTH: I am considering a divorce. I should be stealthy in getting my affairs in order and hide my savings.
FACT: There is no need to do this. Sometimes we hear advice from financial advisors, accountants and other lawyers that people should, by stealth and prior to separation, accumulation as much documentation and information as they can. There is simply no need to do this nor to worry or concern yourself about it. The law provides substantial protection to parties who are in a position of having less knowledge about the affairs of their spouse, including but not limited to business and property affairs. The law requires pre-action procedures to be entered into, including a substantial disclosure of relevant financial documents by each party even prior to going to Court. Experienced and specialist Family Law Solicitors know what documents and information to ask for and they know how to get it. All separating couples are entitled to a full and frank disclosure of everything relevant from the other party. If you are entitled to it then why use stealth methods to obtain it, prior to separation.
MYTH: Superannuation is not considered during settlement.
FACT: Superannuation is always considered during any property settlement. Even though superannuation, in many cases, is not property (that is you cannot access it and spend it straight away), it is still notionally treated as property and included in the available assets for division. The law now allows for superannuation interests to be split between separating couples.
MYTH: I have been in a de facto relationship for over five years but we were never married so I am not entitled to any of my partner’s property.
FACT: This is not correct. If you separate from a de facto relationship or from a marriage then the law regards your relationship as having started when you first started living together. Even if you are only married for a short period of time, the law will regard the commencement of cohabitation as being the starting date for looking at relevant contributions that you have both made.
MYTH: I am in a same-sex relationship therefore family law does not apply to us.
FACT: This is not correct. In most States in Australia (including Queensland) the law is the same in relation to property settlement for a same sex de facto couple as it would be if you were in a heterosexual marriage. As long as you can prove that you’re in a de facto relationship and certain other criteria is satisfied (such as relationship lasting for more than 2 years or a child being born in the relationship) then one may have an entitlement to property settlement.
MYTH: My ex was in a lot of debt. Good thing I’m not responsible for it anymore.
FACT: A parties’ debts are still considered in any property settlement after separation. The amount of that debt that may be taken up in any property settlement will be depend upon many different factors such as, when the debt was incurred and for what purpose the debt was incurred. However, if you have been in a long relationship and debt was incurred in one party’s name but both of you benefited from that debt, then the law will likely take that debt into account when dividing up property upon separation.
MYTH: I am already married, it’s too late to get a pre-nuptial agreement.
FACT: No, this is not correct. Under Australian Law, you can still enter into an agreement (even during marriage) to divide up your assets in the event of any future separation. You do not have to have the agreement finalised before you marry. In some States in the United State, this is the law. You may have heard of these agreements referred to as “Pre-nuptial Agreements”. In Australia, we refer to them as “Binding Financial Agreements” and they can be entered into prior to, during or at the end of a marriage or de facto relationship. A specialist Family Lawyer will know the best type of agreement to draft depending upon your particular circumstances.
MYTH: Family law is cut-and-dried. All divorces work out the same.
FACT: Unfortunately, that is not the case. Family Law is an extremely complex area of law and impacts upon many different types of law. The system is a discretionary system and has no hard and fast rules. It is very important to get specialist advice from an Accredited Family Law Specialist so they can tailor their advice to the particular facts and circumstances of your relationship.
MYTH: Our divorce is amicable, however to get a divorce we must go to court.
FACT: In order to actually be divorced you need to lodge an Application for Divorce with the Court. That can be done in most cases without the necessity of a Court appearance and can also be done online. In order to obtain a property settlement you don’t have to go to Court and you should avoid fighting in Court about property settlement if at all possible. If you and your partner come to an agreement, then that agreement can be documented, signed by you both and lodged in Court and approved. In most cases, that won’t require any appearance in Court at all.
MYTH: After our divorce, my wife will automatically receive custody of our children.
FACT: This is not correct. Arrangements for children should be decided amicably between separating parents as to what they believe is in the best interests of their children. If they can’t reach an agreement on important issues, such as with whom the children should live with, then the law says that the parents need to go to counselling/mediation to resolve that issue prior to making any Application in Court.
MYTH: I spent the most time caring for our family dog (walks, feeding, vet visits), however my ex purchased her, therefore he is entitled to keep her.
FACT: In relation to dogs and pets there are no hard and fast rules. If you separate and can’t resolve the ongoing ownership of loved family pets, then this is another issue that you need to find a way to resolve and work out. The Courts can, in some circumstances, make Orders about who should retain the dog but in most cases Courts are naturally reluctant to be involved in such issues. At all steps of the way, you will be encouraged to negotiate and mediate issues that involve the division/retention of things such as furniture, antiques and in some cases family pets.