The Top 10 Myths in Family Law

Top 10 Myths in Family Law

Every time we meet with a new client, they always have a preconceived idea as to how the law works in family law. This is particularly true as everyone knows someone who has been through a relationship breakup at some point and have formed a view of what is going to happen before even knowing all the facts. Often times this is due to people using google to research their situation and just as commonly, people have heard a myth from a friend about how the law works and take it as the truth without a second thought.

This article deals with the 10 most common myths we as Family Lawyers hear from new clients and attempts to set the record straight once and for all.

Myth 1: The wife automatically gets the house

This is one of the biggest myths in family law. There are no rules that determine who gets what in a property settlement. The actual process used to determine who is entitled to what in a property settlement is a four (4) step process, and looks at contributions both initially and during the relationship, including financial and non-financial contributions (such as caring for children), the future needs of the parties (such as income earning disparities, care of children, health issues and much more) and then a decision is made as to the fair and equitable division of the matrimonial assets. For a further information on what the Courts consider in a property settlement, call us on 07 5667 2970.

Myth 2: Superannuation is not included as an asset

Again, this could not be further from the truth. When the Courts are asked to make a decision on a property settlement, the first step is to work out the asset pool. This involves noting down all the assets and liabilities of both parties, regardless of whether the asset is in joint names nor not. As part of this, Superannuation is included as an asset and is available to be divided as part of a property settlement. In fact, in some cases, the only asset that is available to be divided is the superannuation of the parties.

Myth 3: The mother will automatically get primary care (custody) of the children

When the courts are considering what orders to make in a parenting matter, the starting point is for the children to spend time with both parents on a week about, shared care basis. While there are exceptions to this (such as domestic or family violence) in the absence of any risk factors or any factors which would make a shared care arrangement impracticable, then this is what the Courts are likely to Order.

If it is not reasonably practicable (ie the parents are not within a reasonable travelling time) and in the absence of any risk factors, then the Courts will likely order what is called significant and substantial time, or 4-5 nights per fortnight.

Myth 4: My spouse and I have already decided how to divide our assets, we don’t need to document it

This is a very common thing heard by Family Law solicitors. While it is fantastic that you and your spouse have reached an agreement as to how to divide your assets, unless it is recorded by way of Consent Order or Binding Financial Agreement, then it is not binding on either party and either party can change their mind without any repercussions.

If you and your spouse have reached an agreement, we can document it in a way that not only makes it binding on both parties (ie enforceable) but may also assist in saving stamp duty on the transfer of properties, as well as including provisions on how to effect the agreement if things go wrong or one party changes their mind.

The other reason we would recommend speaking to your local Family Law Solicitor is due to the fact that unless the agreement is documented properly, your ties are not severed in the eyes of the law and as such, if you subsequently receive a windfall (such as an inheritance or lottery winning) your spouse may be able to claim a portion of this as well, even if it is received after separation.

Myth 5: If I see a lawyer, they will just want to take the matter to court to increase their fees

As hard as it may be to believe, as Family Law solicitors, Court is an absolute last resort and we will do everything else to reach an agreement prior to advising you to commence Court proceedings. We are just as interested in reaching an equitable and cost effective settlement as you are.

Myth 6: The Courts are biased towards women

Statistically speaking, this is not the case. Men will typically obtain a more favourable outcome in the event the matter is litigated than women. This is due to a variety of factors, but most commonly is due to the fact that most men will offer their ex-spouse more as they can recover quicker due to greater incomes or due to the fact that they do not want their children to go without.

Myth 7: Everything is in my name so my spouse is entitled to nothing

When considering a property settlement, the Courts will first establish a pool of assets. This pool consists of all assets that the parties own or have an interest in, regardless of whose name they are in.

The Family Law Act gives the Courts the power to alter the legal interests in property to effect a just and equitable property settlement. This means that just because the title to the property is in one parties name, does not mean that the other party is not entitled to that asset or a portion thereof. In some cases, the Courts can order the parties to sell an asset so as one party is able to receive their entitlement.

Myth 8: If I drag out the negotiations long enough, the other party will run out of money so I will win

This is common where one party to the relationship is working and the other is a stay at home parent or where one party earns significantly more than the other.

The Courts are aware that this is a technique used by some to gain an advantage and as such, there is an avenue available to parties called a “Hogan” Order. In short, if a Hogan order is awarded by the Courts, it requires you to pay a sum of money to your spouse’s solicitors to meet their legal expenses so as to allow your spouse to be properly represented before the Courts.

Myth 9: If I transfer all my assets into my mother’s name, then my spouse can’t touch them

Again, the courts look to any property that you have an interest in. This can be an equitable interest, a legal interest or an interest by way of a constructive trust. In short, if it can be proven that your mother is merely the name on the ownership papers/title but the assets are really yours or for your enjoyment, then it can be argued that these assets should be included and taken into consideration in a property settlement.

Another common thing we see is one party transfers all of their assets out of their name just before separation. Unless done for legitimate purposes, this is called a transaction to defeat creditors and the Courts can Order that the assets be transferred back for the purpose of a property settlement.

Myth 10: I don’t need to see a solicitor who specialises in Family Law, any solicitor will do

While there is not requirement for you to see a specialist Family Law solicitor, it is always recommended. This is due to the fact that unless a solicitor practices in Family Law, they can often provide unrealistic expectations of what they can achieve with regards to a property settlement, which can unnecessarily increase fees and animosity between the parties and cause unnecessary delays in reaching a settlement.

We regularly hear of people who have spoken to a solicitor who does not practice in Family Law who promise that they will get their clients 70-80-90% of the asset pool, when in reality, their entitlement is much lower. Had the client been given the correct advice initially, then it is much more likely that the parties will be able to negotiate a settlement as both parties would have been given similar advice regarding their respective entitlements.

So there you have it. The top 10 myths in Family Law busted. If you or someone you know is about to or is currently separating from their partner, come see us at Fedorov Lawyers so we can assist you in not only reaching an amicable settlement between you and your partner, but we can document any agreement to make it binding on both of you to provide security moving forward.

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