The 10 Myths of Australian Family Law – What You Should Know


Myth 1: “The Mother always gets the kids.
In Australia, a parent does not have legal “custody” (or any legal rights) over their child.
There is no legal presumption that a child must (or should) live with the Mother and spend every second weekend and half of the school holidays with the Father.
Rather, it is the child’s legal right to have a meaningful relationship with both parents, to the maximum extent consistent with the child’s best interests (being the paramount consideration).

strong>Myth 2: “I need to be divorced before I can finalise my property settlement.”
There is no legal requirement for you to be divorced (or wait 12 months after separation) before you can finalise your property settlement.
Upon separation, you can (and should) seek to finalise your property settlement as soon as possible.

Myth 3: “All family law disputes must go to Court.”
No. Only 5% of separated couples (whether de facto or married) in Australia actually end up at Trial in Court, particularly for parenting matters where it is now a legal requirement that, except for limited circumstances, parents must attend mediation before an application seeking parenting orders can be filed.
The 95% majority of separated couples generally settle outside of Court (which is far more commercially-sensible and is far less stressful, uncertain and costly).

Myth 4: “We’ve now separated so she can’t get my inheritance.”
Although it is important to consider the value of the parties’ net assets as at separation, a Court, as part of a 4-step property settlement process, must first identify and value the parties’ property, liabilities and financial resources as at the date of Trial or final property settlement (whichever occurs earlier). For example, this may include any lump sum inheritances, gifts or any Gold Lotto winnings acquired after separation.

Myth 5: “We still live together so we can’t be separated.”
Separation can occur “under the one roof.” Of course, you will need to prove this. For example, sleeping in separate bedrooms, clear division of household chores and payment of household bills etc.
Despite popular belief, it is not uncommon these days for separated couples in Australia to remain living together for one reason or another, whether it is children, finance or convenience.

Myth 6: “He was unfaithful so I should get more.”
It is irrelevant and unnecessary to prove who was “at fault” in seeking a property settlement or a Divorce in Australia.

Myth 7: “The 2-year rule applies in Australia.”
According to this popular (but misguided) myth, parties who have been living together for 2 years (or less) receive no share of the other party’s assets.
In Australia, it is extremely rare that a spouse’s property settlement entitlement is “0%.”
Whether the relationship is short or long, the Court must still exercise its wide discretion and apply the long-standing 4-step property settlement process, based on the particular circumstances of each matter.

Myth 8: “We’ve separated so I don’t need to support her anymore.”
In circumstances where a spouse (whether married or de facto) cannot financially support themselves and the other spouse has capacity to do so, a Court may find that the financially-stronger spouse would have to financially support the financially-weaker spouse. This is otherwise known as “spousal maintenance.”
Spousal maintenance is, in addition to and independent of, any obligations to pay child support for a child of the parties’ relationship.

Myth 9: “I earned the money. She just stayed home and looked after the kids so I should get more.”
The financial contributions of each party to a relationship (whether married or de facto) are not the only factors when determining a property settlement.
There is no legal presumption that financial (whether direct or indirect) contributions should be given greater weight (compared to non-financial contributions whether direct or indirect) and vice versa.
A Court must also equally consider other contributions (including non-financial and homemaking) such as maintenance of the house, care of children of the parties’ relationship, unpaid work in a family business etc.

Myth 10: “We had a long marriage. It’s a straight 50:50.”
Unlike other countries, there is no 50:50 rule in Australia for property matters.
Despite popular belief, there is no special mathematical formula for dividing property between spouse parties (whether married or de facto).
It is ultimately and wholly discretionary and the Court, as a matter of practice, applies a long-standing 4-step process in determining what is “just” and “equitable” in all of the circumstances.

Please note that this fact sheet is informative only and is not legal advice. If you wish to know more, please contact us on (07) 3211 4920 to arrange an initial appointment today.