A marriage or relationship breakdown is often one life’s most challenging events. It’s the start of a new chapter that often brings much uncertainty. It is also often layered with inaccurate statements and complexity.
With so much uncertainty, we’d like to set the record straight on some common Family Law misconceptions:
Fiction: I have to get a divorce first.
Fact: A common misconception is that parties need to be formally divorced before they can start and/or finalise the division of their property. While you have to wait 12 months after a separation to obtain a divorce, parties cannot sit in limbo for such time to pass.
In practice it is also better to finalise your property settlement first and get the divorce later, because a divorce puts in place a limitation period of 12 months to finalise your property settlement.
Fiction: Those are MY assets, so they’re not included.
Fact: When we talk about property under the Family Law umbrella, possession is not in fact nine tenths of the law. If one party is the registered owner of all of the real estate, this does not mean that the other party does not share in any of that property. Rather, the property of parties individually and the property of parties jointly is all considered property of the marriage of the relationship.
Fiction: Separation wasn’t my fault, so I should get more property.
Fact: As unfair as it may seem, having an affair or abandoning a family does not mean that a person’s entitlement to the property pool is lessened by those actions. In Australia, family law is a ‘no fault’ jurisdiction, which means that a Court does not take into account which person was at fault in a marriage breakdown. Family Law is not about punishment.
Fiction: The property is always divided 50/50.
Fact: There is no mathematical formula, or any presumption of equal division in property settlement matters. There are a number of factors taken into account when assessing a party’s entitlement under the Family Law umbrella and you should seek advice from an experienced Family Law solicitor if you are going through a property settlement.
Fiction: We’re in Court now, so we have to go to Trial.
Fact: Statistics show that only 2% of parties to Court proceedings end up at the final stage of the Court matter, being a Final Hearing or Trial. The Court process is geared towards encouraging parties to resolve their matter as it progresses through the Court system. Here at Southern Waters Legal we always encourage our clients to explore all available alternative dispute resolution methods before Court.
To avoid getting caught up in fact v fiction, seek advice from an experienced Family Law solicitor.
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