True or False? Family Law Edition

Separation, parenting arrangements, property settlements and divorce can all involve complicated legal processes. There are also plenty of common misconceptions about what you can and cannot do.

So, how much do you really know about family law? We’re putting some common family law myths to the test. True or false?

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You need to be Divorced to do a property settlement

False - We actually often advise people to complete a property settlement before getting divorced, as once you get divorced you then have a 12 month timeframe in which you need to make an application to the Court if necessary.

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The other party is going to get half of my super

False - In most matters we see the parties superannuation equalised, meaning that the value of the parties superannuation is added together and then divided in half, so that both parties walk away with an equal amount of superannuation.

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A lawyer or the Court must be involved to formalise a property settlement

True - There are 2 ways to formalise a property settlement.

• Consent Order - An application for a consent order is submitted to the Federal Circuit and Family Court of Australia for review. Lawyers do not need to be involved in this process however, we strongly recommend that they are in order to limit the possibility that an application will be rejected.
• A Binding Financial Agreement - this requires both parties to obtain independent legal advice about the advantages and disadvantages to entering into the Agreement.

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You have to go to mediation before filing in Court for parenting matters

True - In most cases you must have obtained a Section 60I certificate from a dispute resolution practitioner which says that you have either attended or attempted Mediation within the last 12 months before making an application to the Court. There are a handful of exceptions to this rule.

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My parenting plan is enforceable

False - Parenting Plan’s are not enforceable. The only enforceable option for formalising a parenting arrangement is Court Orders.

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My child is a teenager, so they get to decide where they live

False - Whilst a Court will consider the age of a child when determining what parenting arrangements are in their best interests, there is no definitive age which children get to decide where they live. Generally, the older the child is, the more weight the Court will give to their wishes.

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You must get Divorced

False - You do not need to ever get divorced unless you want to get re-married. If you decide not to get divorced it is vital that you update all your Estate Planning documentation as if these are out of date, or non-existent then your ex could benefit from your estate or could be the one left to make your important medical decisions

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You must be separated for 12 months before applying for divorce

True - You must be separated for 12 months. If you have lived together under the one roof during that 12 month period, you must file additional documentation, including an affidavit from a third party as evidence that you were separated.

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Getting divorced finalises everything

False - A property settlement and a divorce are two different things. A Divorce is the legal process of ending a marriage, whereas a property settlement is the dividing up of the assets and liabilities.

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Need advice about your separation?

Whether you are considering separation, working through a property settlement, making parenting arrangements or applying for a divorce, it is important to understand your legal rights and obligations.

Our Family Law team can provide advice tailored to your circumstances and help you understand the options available to you. Contact us on 03 5623 5166 to arrange an appointment.

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