True or False?
When it comes to separation, there are a few misconceptions that need to be set straight. Here are some of the most popular points.
My partner gets to keep the house because it is only in his name?
It doesn’t matter whose name is on the title of the property. Each of the party’s assets and liabilities form a part of the property pool and will be taken into account when negotiating the terms of a property settlement.
FALSE
My partner does not see the children so she doesn’t have to pay child support
FALSE
The amount of child support a person must pay will depend on how much time they spend with the children. However, even if you don’t spend any time with the children you will still be responsible for child support payments.
You are only considered to be in a de facto relationship if you have been together for two years or more
FALSE
The Family Law Act defines a de facto relationship as one where the parties are not legally married, they are not related to each other and they are living as a couple on a genuine domestic basis. Therefore, even though you have only been in a relationship for a short time, you may have to negotiate a property settlement.
There is no use doing a property settlement as I only have debt
FALSE
Even if you don’t have many assets, you may wish to negotiate a property settlement so that any debts or liabilities of the relationship are dealt with. Just because a debt may be in your name solely, does not mean that you have to be solely responsible for it.
Superannuation forms are part of the property pool
TRUE
Superannuation is considered an asset of the relationship and will be included as part of the property pool when parties are negotiating a property settlement. Sometimes, superannuation can be the parties’ largest asset. Keep in mind however, this does not enable you to access it any earlier. Superannuation laws are still applicable i.e. accessible after retirement age.
We have agreed on what’s going to happen we don’t need lawyers
FALSE
Any agreement that the parties reach in relation to children or property is not legally binding until it is put into order form and sealed by the court. Even if you enter into a parenting plan at mediation, this is not legally binding and either party can change their mind at any time. For peace of mind and security, you should enter into consent orders to ensure they are legally binding.
The children will automatically get to live with the mother
FALSE
The Court has a duty to make orders that are in the best interests of the children and the Court considers that it is in the children’s best interest for them to have a meaningful relationship with both parents. Unless there are concerns for the welfare of the children or if it is not practicable, the children may spend equal time, or significant and substantial time with both parents.
Separation occurs once someone moves out of the home
FALSE
It is not uncommon for couples to separate but continue to live under the same roof. This may occur for a number of reasons relating to finances, convenience or the children. Separation under the same roof is established by taking into consideration a number of factors such as sleeping arrangements, division of finances or informing others of your separation.
Once my child attains the age of 12 years they can decide which parent they live with
FALSE
At law, children cannot make decisions about their living arrangements until they are 18 years of age. The Court can however, take into consideration the views of a child to determine what is in their best interests. The weight given to the child’s view will depend on factors such as their age, maturity level and level of understanding.
I can only obtain a property settlement once my divorce is finalised
FALSE
You can only file for divorce if you have been separated for at least 12 months but this does not apply to finalising your property settlement. This can be done at any time following separation.
I cannot get divorced until my former spouse signs the divorce papers
FALSE
Unlike American television would have you believe, in Australia you do not need the consent of your former spouse to divorce them. If there are no children of the relationship under the age of 18 a divorce may be granted without the other person’s consent, however, at least one of the parties will be required to attend the divorce hearing.
Assets owned by Trusts or Companies cannot be taken into account in a property settlement
FALSE
In Family Law the definition of ‘property’ is wide and it is not uncommon for Trusts and Companies to be taken into consideration when determining what is included in the property pool for division. The most important factor the Court will take into consideration is who has “control” over the Trust or Company.
Everything I own will be split 50-50 with my partner
FALSE
Regardless of whether the relationship was a marriage or a de facto relationship, there is no requirement that the parties’ assets have to be divided equally after separation. A number of factors are taken into consideration to determine the division of the property pool such as the length of the relationship, the financial and non-financial contributions of the parties, the future earning capacity of each party and which parent will be the primary carer of any children.
If you have any further questions or concerns, please contact CBC Lawyers. We also offer a free 30 min consultation.