You may hear stories from friends and family about what happened during their divorce. Perhaps you’ve seen separation or divorce play out or portrayed on television that shapes what you think may happen when you separate. As a family lawyer, I’ve heard some common myths come up time and time again and I wanted to dispel some of them for you so you are clear on what is fact and what is fiction.
Myth: A father is rarely given a shared-care arrangement
It is often thought that when children are involved the mother will always get primary care of the children when a separation occurs. This is not always the case, as there is no law or presumption in Australia that a mother should get greater custody rights to a child than a father.
Unless there are issues of serious family violence or risk to a child, the law is that there is a presumption of equal shared parental responsibility. This means you have to make all the major decisions together about your child, even when you separate. This can include jointly deciding things like religion, school, and major health decisions.
When it comes to parenting arrangements, the main consideration is what is in the child’s best interest. If equal shared parental responsibility is presumed, the Court must consider whether it is practical and in the best interests of the children for them to spend equal time or ‘substantial and significant time’ with each parent.
Substantial and significant time includes children spending weekdays, weekends and holidays with each parent and each parent having meaningful involvement with the children’s daily routine. If you have very young children that haven’t spent much time with the father due to their age, such as a baby that needs to be breastfed, then the social science behind it is that shorter, more frequent visits with the father is going to be best to try to establish that bond with him while the child is very young. However, there is no rule of thumb that the children go with the mother. There are a range of factors that are taken into account such as what the arrangements were during the relationship, or whether the child is primarily attached to one parent, along with practical considerations as to how the time will work.
When there is a situation where a father has had very little to do with a child but now wants to be more present, the fact that he didn’t have any historical involvement doesn’t disqualify him from being able to build up a relationship and spend time with his child. However this may take some time. The law sees that it is in the best interest of the child to have a meaningful relationship with both parents. In these circumstances, it may be appropriate for a child’s time with their father to gradually increase over time.
Unless there is a reason why it shouldn’t be the case, the Court aims for the child to have substantial and significant time with both parents.
Myth: “I need to file for divorce”
People first contact a law firm asking for help to ‘get a divorce’. Many don’t realise the distinction that a divorce is the legal end to a marriage that can only occur after you have been separated for 12 months or more. When you initially separate, you are able to sort out your property settlement and parenting arrangements straight away if you wish. These are the two key elements that should be initially completed.
A Divorce Order itself is a single document that says you are no longer legally married. As an example, sometimes people go through negotiations and/or Court and have a property settlement finalised and but may still be legally married, as they are not yet eligible to apply for a divorce. At the earliest, divorce can be granted 12 months after the date of separation.
Getting advice from a lawyer when you separate is essential, as sometimes it might not be advantageous to file for divorce as soon as the 12 months is up. For example, I had a client with a family trust set up who then filed for a divorce. The way the trust was set up was that it only included the former partner as a beneficiary, if they were a spouse. This is not an uncommon set up as a way to achieve income splitting for tax effective purposes. Because the divorce had gone through the husband didn’t realise that because his ex-wife was no longer his spouse he was not able to distribute income to her anymore causing tax implications that he hadn’t previously considered. Another example is a client I worked with had not yet finalised a property settlement. Given that a divorce triggers a time limitation to start running once finalised by the Court, she decided to hold off making an application until the financial settlement could be further progressed.
It is for reasons like this that it is highly recommended, for your own benefit, to seek advice about the timing of when you file for a divorce.
Myth: “If we separate I’m entitled to 50%”
At times people assume that when they separate they will be entitled to 50% of the asset pool. While this might be the case for some relationships, it’s not the case for everyone and the Court considers a number of factors to determine the percentage split.
These factors include:
- The contributions that each of you brought to the relationship from when you first got together;
- The financial and non-financial contributions that you have each made over the relationship; and
- Future factors. This includes income earning disparity, health issues, age differences, age of the children and parenting arrangements into the future.
These factors are taken into account when the Court considers what percentage of the property pool each party should receive. Each case is different and the outcome is not always going to be 50/50.
The Court goes through a five step process to determine the division of assets.
Firstly, a determination must be made as to whether or not it is “just and equitable” to make adjustments to the parties’ property interests. Infrequently, circumstances may be such that it is not appropriate to make any adjustments but this is rare. Step two is to identify the property to be divided and the value of that property. Step three is assessing both people’s contributions (as mentioned above) throughout the marriage or defacto relationship. Step four considers ‘future factors’. This involves assessing whether there needs to be any adjustments for each party’s needs in the future based on such factors as age, health, earning capacities and the care of children. Step five requires a consideration of the practical effect of the proposed property settlement, and whether it is just and equitable.
Myth: “I can’t separate because I won’t be able to support myself”
Sometimes people will come to us with the thought that they can’t separate because they won’t have funds to support themselves. For example, we often see a mother who has stayed at home to care for the children and isn’t employed. The mother is concerned she won’t be able to survive financially when they separate, unaware that she is able to claim interim spousal maintenance while trying to sort out her property settlement or to access funds, if available, to meet her immediate needs.
The way the Court looks at it is whether one party has a need for maintenance because they can’t meet their reasonable weekly needs from their own income. So even if they haven’t worked or only have a little amount of income because they have been out of the workforce, they may be able to receive spousal maintenance.
What will be considered is if the other party has the capacity to pay spousal maintenance. So, after they have met their reasonable weekly needs, do they have any surplus leftover? Generally in a marriage where one party hasn’t worked, they will have some sort of surplus that can be provided to the other party in the interim.
If this sounds like you, to negotiate this type of arrangement, work with your lawyer and write to the other party to request that they pay an amount for spousal maintenance. If you don’t reach an agreement, then you can apply to Court to seek that the other party pay you maintenance.
Myth: “We’ve separated so my former partner can’t access my inheritance”
When it comes to inheritances you need to remember that in property settlements the assets that you have at the time you are working through a property settlement is what is considered. As this process can take some time, inheritances that are received after you separate can potentially form part of your property pool available for division.
The fact that an inheritance came in after separation doesn’t mean it is not considered as part of the asset pool. When it was received and by who, is relevant to considerations about who contributed what and it may alter the ‘assessment of contributions’ as discussed above.
However, if the property settlement has been finalised, then your former spouse will have no claim to your inheritance under family law. This is one of the reasons why it’s important that you complete the necessary paperwork and have orders and agreements signed.
Myth: “Keep the lawyers out of it and we’ll have a handshake agreement”
Many people can feel that getting lawyers involved can be expensive and unnecessary, particularly where things are amicable. However, if you don’t document things correctly then you can end up costing yourself more. An example of this is having to pay stamp duty with the transfer of a property which would otherwise be exempt under an Order or agreement.
If you only have a handshake agreement, this can leave you open to the risk of further claims in the future, potentially a larger claim, even if the assets have been sold. So it’s important to formalise the property settlement and have it signed off by the Court.
I do hope that this article has clarified some of these common myths for you. What is also true is that the only way you can be truly confident about your next steps is by talking with a specialist family lawyer and seek advice specific to your circumstances. With advice from people who are dealing with a range of issues for their clients in this family law space, you are in a far better position to make informed decisions and act on them.
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