Family law myths, busted
When it comes to family law matters, well-meaning friends or family will be a rich source of advice - advice you probably should not rely on. Here we set the record straight on the top five pieces of advice given by bush-lawyers.
1. You can settle everything without Courts or lawyers
You don't have to involve the Family Court to sort out your property; you don't even have to have a lawyer. But be warned – if your agreement is not properly formalised:
- either party can renege on the deal. The Court can overrule a private arrangement on the application of either party;
- any real estate transfers are likely to attract State Government transfer duty at the usual ad valorem rates.
Once you reach an agreement with your partner it is vitally important that it be formalised either by way of Family Court consent orders or a Binding Financial Agreement (BFA). In order for a BFA to be legally binding, both parties and their lawyers must sign it. Consent orders require the imprimatur of the Court. We can advise you how to best formalise your agreement.
2. Divorce resolves property and parenting issues
Divorce refers only to the issue of a decree absolute. This decree ends a marriage. It does not resolve or change property issues significantly and it does not resolve parenting issues.
3. You need to wait twelve months to resolve property and parenting issues
Divorce is the only part of a family law matter that usually requires twelve months separation. Generally, property and parenting issues can and should be resolved as soon as practicable after separation.
4. One of you has to move out before you’re separated
Although it usually is, separation need not be physical. Generally, separation is taken to have occurred when one party has clearly communicated the end of the marriage to the other party. This can occur while both parties continue to reside in the same home (known as separation under one roof). It can also occur against the wishes of one party.
5. On separation, property must be divided 50/50
Although it’s a fair result in some situations, there is no presumption that the asset pool should be divided equally. Family laws require that each case be decided on its own merits. Visit – I’m separated, what are my property rights?
And finally: To get the best result you need a tough lawyer.
See - You don’t need an aggressive lawyer.
I’m separated – what are my property rights?
The first step in any property settlement is to identify and value the asset pool. The pool includes all assets, liabilities and resources in your name, your partner's name or joint names. Superannuation is included. It also includes the assets held by a company, trust or other entity or structure which is controlled by either party. Assets and liabilities are valued for family law purposes as at the date of an agreement or Court hearing, unless otherwise agreed.
The facts relevant to determining a fair division of the asset pool fall into three categories.
In the first category are the contributions made by each party to the asset pool whether financial or non-financial and whether directly or indirectly. For example, the Court will consider:
- the net assets of both partners at the start of the relationship
- the income of both parties during the relationship and how it was used
- financial assistance received by either party by way of an inheritance, windfall or otherwise,
- time and effort spent maintaining or renovating property; and
- contributions as home maker and parent.
Future needs etc
The second category of factors generally relate to the future needs of each party. Lawyers often refer to these factors as the "section 75(2) factors", referring to the relevant section of the Family Law Act. These include:
- the arrangements for care of children and child support arrangements
- the income of each party and their capacity for employment
- the age and state of health of both parties
- the size of the asset pool and nature of the assets.
Fair and equitable
The third and final category is a general requirement that division of property must be fair and equitable looking at all the circumstances of the case.
Know where you stand
Although it’s a fair result in some situations, there is no presumption that the asset pool should be divided equally. Family laws require that each case be decided on its own merits. Book a family law consultation [link] for legal advice and to discuss your requirements.