If you’re in the unfortunate situation of going through a break-up you have probably heard all sorts of ‘advice’ from well-meaning friends and family. Family and friends are a great source of emotional and physical support when you have separated, however good legal advice is essential so you are aware of your rights. Being properly informed can help you to finalise your property affairs and come to workable arrangements for the ongoing care of your children.
In this article, we clear up some common family law fallacies and hope to provide useful information to assist you with your family law matter.
The children will spend equal time living with my ex-partner and me
Not always. The concept of equal shared parental responsibility was introduced into the Family Law Act 1975 (Cth) to encourage and acknowledge the benefits of shared parenting after separation.
Equal shared parental responsibility means that each parent is jointly and equally responsible for significant long-term matters concerning their children. This includes decisions about their health, welfare, education and religious and cultural upbringing.
The concept however is often misinterpreted as a ‘default’ position whereby the children will spend equal time living with each parent. Whilst the Court must consider the children spending equal or significant time with each parent, it is not a ‘given’.
The Court has an overriding obligation to consider the best interests of the children and a range of factors will influence its decision. A practical approach must be taken regarding what is realistic in terms of family dynamics, work commitments and other responsibilities. Only if equal living arrangements are practical and in the best interests of the children will they be ordered.
We both keep our separate superannuation accounts
This is not necessarily so. Superannuation is treated as property and forms part of the asset pool for consideration after a relationship breakdown.
The splitting of superannuation between married or de facto partners may be by Court order, superannuation agreement, or included in consent orders or a financial agreement.
Various steps are involved – the parties will need to obtain information from the relevant superannuation fund, a valuation, and sound advice before a splitting arrangement can be finalised. Once the fund is split, a separate account is created and the new fund remains subject to existing superannuation laws.
Different types of funds are valued in different ways. The laws relating to superannuation splitting are complex and must be considered in the context of other non-superannuation assets in the asset pool. Comprehensive legal and financial advice is recommended when determining whether a superannuation split is appropriate.
You can’t divide your property until you get a divorce
Couples must be separated for 12 months before getting a divorce and may commence negotiations to finalise a property settlement before a divorce being granted.
The finalisation of a divorce triggers a 12-month limitation period within which to commence proceedings for a property settlement.
Separated couples who were in a de facto relationship have a 2-year timeframe, after separating, within which to commence property proceedings.
The bread-winner should have a greater entitlement to the asset pool
Not so. In addition to financial contributions, the non-financial and indirect financial contributions of a party are included when determining a property settlement. These contributions are not given a dollar value however will be important when making a percentage adjustment to the asset pool.
Non-financial contributions are contributions considered to have assisted in increasing the asset pool. They include the care and welfare of children, management of the household and finances, and labour used to improve or conserve the home (such as renovating or landscaping). For example, a partner who stays home to raise children is considered to make an indirect financial contribution by enabling the other partner to contribute financially through his or her employment or business efforts.
In the well-known case of Whiteley and Whiteley (1992) FLC 92-304, the wife’s efforts of modelling, critiquing, discussing and evaluating Brett Whiteley’s artwork were considered a significant non-financial contribution and inspiration to his financial contributions to the marriage.
Family law matters end in a court-room battle
Despite Hollywood images of ex-couples embroiled in court-room combat, most family law matters settle without the parties needing to attend Court.
Commencing proceedings for the division of property only depletes the available assets and contributes towards anxiety. Court should be a last resort and the Act requires that parties make genuine efforts to resolve disagreements and participate in dispute resolution before commencing proceedings. The objectives of these ‘pre-action procedures’ are to:
- encourage early disclosure through the exchange of information between the parties;
- minimise the need for legal action by reaching an early settlement;
- build a process to resolve a matter quickly and to limit costs; and
- if proceedings are necessary, assist in their efficient management by identifying the actual issues in dispute.
It is important to be guided by expert advice when resolving your family law matters. Even if you and your ex-partner are amicable, it is wise to legally finalise your property affairs so that you can both move on with your lives.
The Court plays a very discretionary role when deciding family law matters, and the likely determination that a Court would make should always be considered when negotiating and agreeing on an out-of-court settlement.