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Family Law- Myth vs Fact

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The Mother Always Gets The Children

First and foremost, parents do not have “rights” in relation to their children.  Parents have responsibilities.  The law presumes that parents have equal shared parental responsibility for their children and that is the starting point for resolving parenting matters.

While the Court encourages the children to have a relationship with both parents, the Court’s paramount consideration is the best interests of the children. Therefore, if one parent poses a risk to the children, or the children have been primarily cared for by one parent, the Court will not make an Order that puts the children at risk or make an Order that may cause the children harm.

They Aren’t Entitled To Assets To Which They Did Not Financially Contribute

It is a common misconception that your spouse or de-facto partner should not be entitled to those assets that “they had nothing to do with.”   This may be a property that you had purchased prior to the relationship which is in your sole name, your superannuation entitlements or savings in your sole bank account that you have saved from your own income.

Yes, some assets may be in your sole name and yes, your spouse may have not contributed to them in any way. However, those assets still form part of the property pool at separation.  The Court then considers several factors when determining how to distribute those assets.  Enquire with us on how a Financial Agreement can protect your assets and ensure clear communication from the onset of your relationship.

Property Is Always Divided Equally

This is not true.

As discussed above, the Court considers a number of factors when determining how to distribute property interests.  If you have been in a short relationship of 2 years, there are no children of the relationship and you had most of the assets at the commencement of the relationship, the Court would not make an Order for the property pool to be distributed equally.

The Court must ensure that any Orders made are fair and equitable.

I Need To Wait Before I Resolve My Property Settlement

People often ask, “when can I start?” The answer is, as soon as you separate.

If you have separated from your spouse, you do not need to wait for Divorce to resolve your property settlement.  As you need to be separated for 1 year prior to being able to make an Application for Divorce, it is hopeful that you will be able to resolve your property settlement before making this Application.  There are also time limits that you need to be aware of once you are Divorced.

For de-facto couples, the answer is the same.  As soon as you have separated and believe that there is no chance of reconciliation, you can start negotiating and finalising your property settlement.  As a de-facto couple, you have 2 years from the date of separation to resolve your property matters.

Assets After Separation Are Not Included

This is particularly relevant in the case of married couples. 

When married couples separate and do not divorce, generally the assets they obtain post-separation form part of the property pool.  For example, the parties may have been separated for 5 years.  If one party then solely purchased a home, that home would form part of the property pool.

In the case of de-facto couples, anything obtained within 2 years after the date of separation will form part of the property pool, if no property settlement has been finalised.

If you speak to one of our family lawyers, they can advise you on time limits of which you need to be aware, as well as resolving your property matters on a final basis to prevent any future claims.

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Tuesday, 27 October 2020

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