As family lawyers in Perth, we’ve heard it all when it comes to divorce myths. So here are 9 myths about divorce busted by our family law team.
Myth #1 – Both Parties Have To Agree To Divorce
Certainly not true. There is no law compelling anyone to remain in an irretrievably broken marriage or relationship.
If the Family Court is convinced that the marriage has irretrievably broken down, and the spouses have been separated for 12 months, it will grant the divorce. In almost all cases, when one partner wants a divorce, there will be a divorce.
Myth #2 – You’re Entitled To More Of The Asset Split If You Didn’t Cause The Break Up
Australian Family Law applies the “no fault” divorce system, and does not take into consideration who was responsible for the break up, focusing only on terminating the marriage with terms both parties can comfortably live with. Who or what caused the breakdown of the marriage will have no bearing on the splitting of assets.
There are however circumstances that may be considered in some very rare cases. For instance, when there has been a deliberate destruction of property or assets by one partner, which may have led to the disintegration of the marriage.
Myth #3 – You Can Stop Your Ex Seeing The Kids If They Stop Paying Child Support
The paying of child support is totally unrelated to the arrangements made on how much time each parent spends with the children.
The Family Court may take into consideration the fact that someone is not paying child support in relation to whether someone is taking their responsibilities as a parent seriously, but you cannot use this as a legal excuse to stop them spending time with their children.
Myth #4 – The Children Can Choose Who They Live With
Depending on the age and maturity of the child, their views may be considered by the Court, but the Court is not necessarily bound by them. The Court will only rule on what is in the best interests of the child. Sometimes an independent children’s lawyer can be appointed and make recommendations for the living arrangements of the children involved in a divorce.
Myth #5 – Everything Will Be Split 50/50
Under Australian Family Law, the splitting of assets needs to be fair and equitable, but that does not necessarily mean everything will be split 50/50. As each divorce comes with its own set of circumstances, there are numerous factors that need to be considered in each case.
Some of these factors include, length of marriage, contributions made during the marriage, ages, future needs and circumstances of both partners and their children, and their ability to earn or support themselves.
To make things even more complicated, there is no set formula as to who gets what in a divorce. Rules that govern the splitting of superannuation can complicate the matter further. It is therefore absolutely crucial to obtain professional legal advice, particularly when the asset pool is fairly large.
Myth #6 – Financial Contributions Count More Than Non-Financial Contributions
The Family Court does not place any greater or lesser value on either financial or non-financial contributions. Instead, it adds up all the assets accumulated in the marriage, and splits them in a fair and equitable manner to suit the needs of both parties and their children.
Myth #7 – You Can’t Officially Separate Until One Person Moves Out Of The Home
Australian Family Law requires a 12-month separation period before anyone can file for divorce.
The law acknowledges that this may not always be physically possible due to financial circumstances, and allows divorcing partners to live separately under one roof for the required separation period.
Both parties must show that they have lived in separate rooms without any socialising taking place. It may be awkward, but is still legally acceptable.
Myth #8 – Property Settlement Can Only Be Finalised After You Divorce
Although the law allows applications for property settlements to be lodged within one year of the divorce being finalised (2 years for de facto relationships), couples are strongly advised to begin settlement discussions and negotiations as soon as they make the decision to separate and divorce.
Their respective family lawyers are the best people to advise them, in order to reach a quick and painless settlement.
Myth #9 – All Divorces Must Be Settled Through The Court
The vast majority of divorces in Australia are settled out of the Courts.
If there are children under 18 years of age involved, divorcing parents must first attempt mediation to resolve their disputes and reach an amicable settlement on their own. If some disputes cannot be resolved through mediation, these can be taken to the Court where a Judge will make the final decision.