Family law is an area which touches many individuals and families. Many of us know someone who has separated or may have difficulties navigating with their former spouse on property and children matters. Often, we hear of bits of advice on family law from friends and family members. Sometimes, the information is confusing and overwhelming.

In this article, we tackle some of the common misconceptions in family law so that there is clarity on these issues.

1. Misconception – We need to divide our finances 50/50 when we separate

A 50/50 split is not automatically the case! As lawyers, we often hear this when we first meet our clients. The law does not automatically say that a couple’s property and finances are to be divided equally. There are many factors that need to be considered such as financial and other contributions made by each party to the acquisition of the parties’ assets, the care of the household and the children, the length of the relationship, health issues or needs of each party, the future earning capacity of each party and the needs of children under the age of 18 years old. All these factors impact on the final overall percentage in the division of the parties’ assets.

2. Misconception – Children need to live in an equal shared, or 50/50 care arrangement

This is another misconception we hear all the time! A 50/50 care arrangement for the children is not automatic when parties separate. In children’s matters, the focus is not on the parents but on the best interests of the child. There are two matters to consider:-

• Parental Responsibility
  Whether both parents or only one parent should make decisions regarding major issues affecting their child such as schooling, health and religious upbringing; and
• Live with and spend time
  Whether the child is to live with one, or both parents and if so, the arrangements for this to occur and how much time the child is to spend with each parent.

For parental responsibility, the law currently says that there is a presumption that both parents have equal parental responsibility unless there is abuse or family violence. Many parents assume that if they have shared parental responsibility, then they should also have equal time with the children. However, this is not the case. There is no presumption that both parents are to have equal parenting time with the child.

Instead, if the parents are to have equal shared parental responsibility, then the court must consider whether it is in the child’s best interests and reasonably practical for the child to spend equal, or substantial and significant time with each parent. Substantial and significant time also doesn’t necessarily mean 50/50 time. In considering the time each parent spends with the child, factors such as the child’s age, maturity and health, the nature of the conflict between the parents and the parents’ work and personal commitments will impact on the final outcome.

The law will change on 6 May 2024. On this date, the presumption as to equal shared parental responsibility will no longer apply. Instead, the sole criteria in deciding parental responsibility, living arrangements and time with the child will be based on the child’s best interests.

3. Misconception – We can use a ‘separation agreement’ available online to finalise our finances

There are two legal documents under the family law that are legally binding, and which finalises property and financial matters. These are Court Orders issued by the Family Court or a Binding Financial Agreement entered into by the parties. Court Orders may be made by agreement of the parties pursuant to a Form 11 Application for Consent Order or may be made after a court hearing where the court decides on the dispute. A Binding Financial Agreement is a private arrangement reached by the parties. There are strict rules governing the making of a Binding Financial Agreement and if not made properly, it may not be valid.

Be careful of documents that are available online that look like they are legally binding but may not be so. It is always best practice to consult with a family lawyer about how to formalise your property and financial matter on a final basis before signing off on any documents.

4. Misconception – We can back date information and figures in our financial and property matters

Generally, all figures for income, assets and liabilities for negotiations and for inclusion in a family court document or a Binding Financial Agreement need to be current, and not back dated to the date of separation or to a mutually agreed date.

5. Misconception – I don’t want to go to a lawyer because it will get messy!

This is certainly not true! Consulting with a lawyer or getting their assistance doesn’t mean that things will get messy. Consulting with a lawyer will give you information that you may not be aware of and will prevent you from making mistakes. Even if your former spouse gets a lawyer, that doesn’t mean it will get messy. Sometimes two lawyers are better than one and they can work together collaboratively to protect the rights and entitlements of each party and formalise any agreements reached.

Don’t be afraid to book an appointment with a lawyer, we aren’t scary like they say we are in the movies!

NOTE: The information in this article is generic in nature. It is always recommended to consult with and get the advice of a family law about your specific situation. Please call our office to book a consultation with one of our family lawyers.