Do you know one of the most frustrating things about being a family lawyer? The urban legends, the myths, the story of a “friend of a friend, who knew some guy” who went through a separation and X, Y, Z happened. The classic “BUT, my mate at the pub, said” is heard so frequently, that the response of family lawyers is almost as second nature as the Family Law Act itself.
But we have a solution, and that is, if you are going to talk about family law at the pub, or if you are going to publish a response in an online whirlpool forum, allow us to give you the accurate information to do so.
So here are some of the more common myths we encounter, and whether they are true or not.
Myth: “We have been living together for 6 months. We are de facto”.
We say: Mostly untrue.
A de facto relationship can be found at any time, irrespective of the length of time you have been living together or whether you have never lived together on a full-time basis.
What is important for you to know however, is that the Court will only exercise jurisdiction to determine a property or spousal maintenance application if that de facto relationship lasted for at least 2 years in total, if there is a child of the relationship if you have made significant and substantial contributions to the relationship or the relationship was registered under a state or territory law.
Myth: “It is always 50/50”.
We say: Not always.
An equal division of property is a useful starting point, but it is not the only starting point, nor is it appropriate in each and every case.
In property matters, we usually make an assessment of the following questions:
- Is it just and equitable to interfere with the legal and equitable interests as they currently stand?
- What are the financial and non-financial contributions of the parties?
- What are the relevant ‘future needs’ of each party?; and
- Is the outcome reached just and equitable in all the circumstances?
At each stage, the value of the contribution or future need is given a percentage. The value of that percentage is determined with regard to the broader context of the relationship, for example the length of the relationship. This can result in all different kind of adjustments.
Myth: “I worked; they stayed at home. I will get more”
We say: Actually, no.
The Court has determined that the contribution of a party as a homemaker and/or parent is equal to the financial contributions of the other party.
Myth: “The Court favours Mums. I will be a weekend Dad”.
We say: This is about perception.
The Court is concerned only with what is in your child’s best interests.
Studies have shown that developmentally, it is in the best interest of a child of a young age to spend more time with their primary attachment figure, and frequent, shorter periods of time with the secondary attachment figure.
Typically, the Mother is the primary attachment figure and this is why children generally remain in the primary care of the Mother.
This changes as the child gets older.
What the care arrangements will look like will depend upon your child, and the circumstances of your matter.
Myth: “They will take me for everything I have got”
We say: this is a mindset.
This mindset is the biggest and most difficult issue to overcome for many clients
It is unhelpful to think that by involving lawyers for the purposes of property matters, that the other party is ‘out to get you’ or to ‘take you to the cleaners’.
Provided that you fall under the jurisdiction of the Family Law Act, each party under the law has an entitlement under the law to seek an alteration of property.
They are not ‘taking you for everything you have’ nor are they ‘out to get you’. They are simply exercising a right they have under the law.
Myth: “They are my kids; I get them for half the time”.
We say: Not always, and this is not the way the Court will look at it.
The Court’s primary concern is what is in the best interest of your children.
Sometimes, this may mean that you share care of your children with your former spouse, but it is not a right you are entitled to simply because you are the parent of a child.
Myth: “They can’t take my superannuation, I worked for it”
We say: Untrue
Superannuation is property, just like any other asset of your relationship, and can be split.