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Top 5 Myths About Family Law

Top 5 Myths About Family Law

Tue, 30th Mar 2021

When a relationship breaks down, many people don’t feel like talking to someone about the situation and getting advice. But the truth is, it’s always best to be armed with the right knowledge and facts about family law and how it affects you and your circumstances. 

Whether you seek legal advice or not, here are 5 common myths surrounding family law that you may not know about.

Myth 1

If we split my partner is automatically entitled to fifty per cent of our possessions when we separate

Fact

There is no 'one-size-fits-all' regulation when it comes to the division of possessions. The Family Law Act 1975 lays out a number of factors that should be thought about to figure out exactly how properties must be distributed after the break down of either a marriage or de facto partnership. A few of those elements are:

  • Whether the participants had assets prior to the relationship started
  • Whether one or both parties made special contributions during the partnership, such as getting an inheritance, present of cash or perhaps a settlement. The length of the partnership (how properties are split in a short relationship might be quite different from a lengthy relationship).
  • Whether there are children from the relationship.
  • The time the children spend with each parent after separation.
  • Whether the conditions of the relationship has influenced the income earning capacity of either of the parties.
  • Each person’s age and health. 

Do bear in mind: These are just some of the concerns that are considered, but all of them combined, are essential to establish just how their assets are split. Obtaining family law advice early will help participants understand where they stand, and can assist with an early resolution.

Myth 2

We have to be separated to have a property settlement.

Fact

It is not required. Participants can negotiate as well as formalise a property settlement at any stage after they separate as well as before being separated.

A divorce is a formal procedure for finishing a marital relationship. Couples cannot divorce until they have been separated up for one year. However, once the divorce is granted by the Court, the parties will only have a year from the date of the divorce to formalise a property settlement. In most situations, we advise that parties formalise their property settlement before obtaining a separation.

Myth 3

We signed a statutory declaration when we divided the property - that's legal right?

Fact

No! A statutory declaration is not a legitimate means of formalising a property settlement. It is not a binding agreement between the individuals. A property negotiation can only be lawfully binding if:

The individuals apply to a Court with jurisdiction over Family Law situations for a consent order; or.
If they enter into a Binding Financial Agreement.

Do bear in mind: If an agreement has already been reached, the procedure of legalising the arrangements often tends to be straight forward and also the parties will certainly not typically require to attend court. We suggest that individuals acquire legal advice regarding the most effective way of formalising their property settlement.

Myth 4

As parents, we are entitled to 50/50 child custody, no matter what.

There is a myth that when parties split the law ensures that any children involved will immediately spend equal time with their parents. Whilst this might be a good result for some families, it does not fit all.

Fact

The Family Law Act provides that the children's best interests are a paramount factor in determining parenting orders. 

Generally speaking, there is a presumption that both parents have equal shared parental responsibility for their children. What this means is that the parents must jointly make decisions as are necessary to ensure that a child’s needs are met, and includes decisions choose for the children such as where they live, their health and wellness, education and also religious beliefs. It is only when disputes arise about children that they need to allocate parental responsibility arises.

If you are worried about the long term parenting plans for your children we would certainly suggest you get lawful guidance.

Myth 5

I'll only see my children every second weekend as well as half of the school holidays.

Fact

Every family is diverse and there are a number of variations on how parents might organise parenting plans for their children following separation. If children are not spending equivalent time with their parents, the Family Law Act sets out criteria for children to spend time with their parents; so long as it is for their benefit.

 

The law acknowledges that it is necessary for youngsters to be with their parents routinely and it is valuable for children to have both parents involved in their day-to-day regimens. It is common for parents to see their children each week. This might involve a block of evenings together in one week or having meals together on 1 or 2 nights in the other week. It all comes down to personal circumstances and what will be most beneficial to the child/children.

 

If you are concerned about separation from your spouse and how your children may be affected or want to know more about your legal rights, be sure to get legal advice in the first instance. Have a chat with the friendly team at Carroll Goldsmith Lawyers today to discuss all of your Family Law needs.

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