By Chantelle Cardona | 5 April 2024
1. "Everything is divided in equal shares, right?"
Wrong. Whether you are married or in a De Facto relationship, if you choose to divorce or separate from your partner, it does not guarantee you an equal share of the assets. The Family Court takes into account the contributions of each partner including their needs and what is just in all the circumstances.
2. "I’m afraid I’ll lose my rights if I leave him/her?"
Wrong. Whatever the reason you choose to divorce or separate, you do not lose your rights to any entitlements to any assets or access to children.
3. "What I owned before the marriage/relationship is mine and can’t
be claimed by the other spouse/partner"
Wrong. When the relationship or marriage ends, you do not have absolute rights to what you owned before the marriage or relationship when you divorce or separate. The Court will consider what you owned as a contribution by you. However, you are more than likely to keep most of the asset if the marriage or relationship lasted for less than five years.
4. "All the inheritances
and gifts I received are mine and can’t be claimed by the other spouse/partner"
Wrong. Gifts and inheritances received by a spouse are seen as a contribution. If a spouse inherits money and uses that to pay off a car or home loan owned by both spouses, that becomes part of the property pool when the relationship breaks down. Although the Court will acknowledge that the spouse who inherited the money and paid off most of the debts made a bigger financial contribution, there is no guarantee that the spouse who received the inheritance will be entitled to claim all the inheritance and gifts received.
5. "I operated a
business as a sole trader therefore my spouse/partner is not entitled to anything"
Wrong. If a member of a couple operated a business on their own, their spouse can be entitled to a share of it when the relationship breaks down. Even if a spouse did make some contribution, for example, maintained financial records, booked appointments, served customers and the like, the Court will consider this as a contribution to the business. On the other hand, if the spouse did not participate in running the business and chose to be a homemaker and/or care for the children, they would be regarded as having made an ‘indirect contribution’. This means that the spouse contributed by providing more freedom to the other spouse who owed the business to operate it.
6. "The Courts
always awards the wife/mother with more"
Wrong. The wife/mother receives a division of the assets that must be able to support both themselves and the children. It may appear that Court awards the wife/mother with more than the husband/father at first however in the long term, the husband/father are better off financially as they have greater capacity to earn more income and to get a loan from a bank because they do not have children to support. Meanwhile, while the Court gives the wife/mother more of the property pool, she may not be able to get full-time employment and have limited borrowing capacity after the divorce/separation in the long term.
7. "Both spouses are entitled to spend
equal time with the children"
Wrong. The Court will consider what’s both feasible and in the best interests of the children. For both parents to have shared care arrangements both parties need to cooperate. Shared cared arrangements usually work well for some couples who can cooperate amicably and come to a mutual agreement. However, if there are issues such as domestic violence, extreme conflict between the parents, mental health issues, concerns for the children’s safety or long-distance issues, the matter will have to settle in Court.
8. "The
wife/husband abandoned the kids with me so they don’t have any rights to see
them"
Wrong. Whether the one of the parent’s abandoned the children with the other parent, the Court will consider whether the parent is able to care for the children and whether there are risks to the children’s safety should they make contact with them. If there are no threats to the children’s safety and wellbeing, the Court will consider the parents’ right to spend time with the children and establish a relationship with them.
9. "The mother always gets full custody
of the children"
Wrong. Some fathers assume they are less likely to succeed in obtaining an order for the children to live with them because they believe the Courts favour the mother over the father - but this is not the case. The Court is not biased when determining full or shared custody of the children. The Court does not favour the mother over the father, nor do they prioritise a children’s relationship with the mother. Under Section 60CC of the Family Law Act 1975 (Cth), the Court considers the importance of a children having a relationship with both parents. While it is most common that the mother is the primary carer of the children, they will most likely continue to do so after separation.
10. "The wife/husband got full custody
of the children so I don’t have to give them anything from the property pool"
Wrong. It is the responsibility of both parents to support the children unless a Court orders otherwise. Children are not considered part of the property settlement and are dealt with separately. Property and financial entitlements are considered by the Court based on each party’s past contributions and future needs. The Court’s decision on property and financial entitlements and the amount of child support to be paid has nothing to do with which parent has full custody of the children or spends less time with the children.
11. "My spouse/partner is violent towards me, if I divorce I will have nowhere to go"
Wrong. If there is domestic violence, threats or intimidation by one spouse/partner to the other and/or their children and the couple both rent or own the premises which they live in, the spouse/partner experiencing the abuse may be able to get exclusive occupancy prohibiting the abusive spouse/partner from residing in the premises. This is done via an order from either the Family Court or the Local Court. The Court will consider the needs of both parties and the children (if any) before ordering the abusive spouse/partner to leave the premises regardless of whether they jointly or solely lease or own the premises.
12. "My spouse/partner is threatening to sell/mortgage the house and other assets before settlement. I will end up with nothing"
Wrong. If either spouse/partner threatens to mortgage or sell the home or any other assets, the other spouse/partner can seek an order called 'an injunction' to stop them from doing so or lodge 'a caveat' on the title of any real estate to warn potential buyers and stop the property from being mortgaged or sold. This way, all assets will be protected until orders are made at the Final Hearing.
13. "The process will only take a few months and it's over"
Wrong. Family law disputes could take as long as 1 year to 3 years from the date of separation. The Court will not make orders immediately after the final Hearing and could take an additional 3-6 months or even longer to receive the final orders.
Separation and divorce are known to be one of the most frustrating and stressful experiences a person can have. The process may take long and cause significant heightened psychological and emotional strain or even fear for one's safety. The event can cause a disruption not only to one's ordinary daily routine but, can also interfere with their relationships with family, friends and children.
Getting a divorce or separation and dividing assets is not an easy process especially when the couple may not get along, are threatening and/or intimidating towards the other and there are conflicting interests regarding children and the amount of assets each party is entitled to receive that is why it is imperative that one consults a Solicitor for legal advice and representation to guide them through the process.
Chantelle Cardona is a Solicitor in New South Wales. The article does not constitute legal advice, is not intended to be a substitute for legal advice and should not be relied upon as such. Please consult legal advice from a lawyer in your State or Territory in relation to any particular family law matters you may have.