Key Takeaways:
- While there is a lot of information about the family law system available, many family law myths exist causing confusion about family law in Australia.
- Many family law myths are based on traditional family roles and how these interact with the legal system.
- Working with a family lawyer when you’re involved in a family law matter ensures that you have accurate information and professional guidance.
While many of us have a basic understanding of the law and some legal processes, a lot of us are not aware of the finer details and intricacies of the law and dealing with legal matters. Hearing the words “you can’t handle the truth” in the movies is the closest some of us will ever get to a courtroom, but there are many reasons that you may end up involved in a legal matter.
One of the most common types of legal matters you could end up involved in is one that falls under the family law system in Australia.
The family law system deals with the legal aspects of a family relationship, particularly when the family relationship breaks down. Matters such as divorce, separation, financial support, property division and family violence all fit under the family law umbrella.
Like any other legal system, the family law system is complex and can be difficult to understand. And often people involved in a family law matter are going through one of the hardest periods of their life.
There are many family law resources available to learn about the system, however, there are many aspects of the family law system that are misunderstood which leads to myths and misconceptions. In this article, we’ve selected 9 of the most common family law myths we hear as family lawyers and have put together some information to help you understand the truth.
Keep reading to bust the most common family law myths.
Myth #1 – My partner cheated so I get more in the property settlement
When a partner has been unfaithful, whether it’s a marriage or a de facto relationship, while it’s very hurtful, it does not mean that you’re entitled to a greater share of the assets of the relationship.
Infidelity is one of the leading causes of a relationship ending and it used to play a very important role in the family law divorce system. Prior to 1975, if a person wanted to get divorced, they needed to cite a cause and there were only a handful of causes that were accepted. Infidelity was one of them.
Nowadays, the divorce system in Australia is a no-fault system which means that fault doesn’t need to be proven, rather it just needs to be demonstrated that the relationship has irretrievably broken down.
Infidelity doesn’t have a legal impact on divorce in most situations. It can cause irrational behaviour and hostility and often people believe that they should get more in the asset division due to their emotional suffering, but this is not how the family law system works in Australia.
Infidelity could have a legal impact when the person who was unfaithful behaved negligently and recklessly by using significant assets of the relationship to conduct their affair. This is known as wastage and could impact a property settlement.
Learn more about infidelity and wastage here.
Myth #2 – Prenups are only for the wealthy
We often hear in the news about wild prenuptial agreements between celebrities and the rich and famous, however, prenuptial agreements are not just reserved for people with many assets.
Prenuptial agreements are essentially a way for a couple to plan out how they will divide their assets and property in the event of their relationship breaking down. In the Australian family law system, a prenuptial agreement is also known as a Binding Financial Agreement and can be made to protect the interests of both married and de facto couples.
Though they are referred to as prenups, they can be made at any point in a relationship, including prior to the marriage, during the marriage or relationship, or even after the couple has separated.
Prenups can be entered into by anyone over the age of 18 who is in a serious relationship or entering into a marriage and are most certainly not only for the rich. They are a way to protect what is important to each party and can be very flexible in what they include. You can include not only assets you have now but also those that you may receive in the future.
A large benefit of a prenuptial agreement is that you enter the relationship or marriage with financial transparency and understanding right from the start. And if the relationship ends, you essentially have your property settlement already sorted.
It’s important to note that while most prenups that are entered into lawfully are enforceable, there may be situations where it can be overturned, such as if the agreement was made under duress or if one party did not disclose all relevant information.
Learn more about prenups here.
Myth #3 – You’re going to have financially support your ex when you get divorced
Financial support comes in many forms, including spousal maintenance and child support. For this myth, we’re going to discuss spousal maintenance and whether you definitely have to pay it if you get divorced.
Spousal maintenance is when one spouse financially supports the other spouse. People often think they are automatically guaranteed this support or that they have to pay it, however, it’s not always required.
A spouse may be required to pay spousal maintenance to their former spouse when that spouse is unable to adequately support themselves.
It’s important to note that this payment doesn’t just happen. Spouses can privately agree to provide this support or a spouse can apply to the Federal Circuit and Family Court of Australia for spousal maintenance.
The court will look at a wide variety of factors before deciding whether spousal maintenance payments are required. Some of these factors include the capability of each party to earn an income, their ages, and their financial resources. These factors will also be used to determine the value of the payments too.
Before deciding whether spousal maintenance is appropriate, another key factor the court considers is the ability of the party the payment is being requested of to actually be able to provide this financial support and still support themselves.
Learn more about spousal maintenance here.
Myth #4 – Child support is only paid by fathers to mothers
There is a very common misconception that the family law system favours women’s rights over men’s and this misconception is the root cause of many family law myths.
In the case of child support matters, it’s very common for people to think that only fathers pay child support, however, this is not the case, and every situation is unique. A cause of this misconception is that in many situations, traditional family roles such as the mother having stayed at home to care for the child while the father earns a living, have carried on.
There are also many misunderstandings and myths surrounding child support because it is complicated. One of the reasons for this is that there are a few different ways that child support can be managed. It can be managed privately between parents or with the assistance of Services Australia – this includes how the payments are made and how much the payments are too.
Parents have a responsibility to provide for their child financially in Australia and it doesn’t matter whether the parents of the child were married, de facto, never in a relationship and gender plays no role.
In most cases, the parent who receives a child support payment is the one who has the higher percentage of care for the child. While many parents may aim to share custody and have equal care, one parent will have a higher percentage. Services Australia provides resources to help parents to understand how child support is worked out, including determining the percentage of care for the child.
While the gender of the parent doesn’t come into play, factors such as their ability to earn an income, the caring responsibilities and financial resources will all play a role in determining who receives the child support and who pays it.
It’s important to note that if parents decide to make a private agreement regarding how they will financially provide for their children, this can mean that one parent pays for education matters while the other pays for food and other resources – these agreements can be as flexible or as detailed as you like.
Learn more about child support here.
Myth #5 – Family and domestic violence is only physical abuse
Abuse exists in many different forms, however, some people do not realise that the behaviours they are experiencing at the hands of their partner or family member are abusive and they suffer in silence.
Physical abuse is common and a well-known type of abuse, however, abuse also extends far beyond physical abuse and includes the following behaviours:
- Verbal abuse
- Emotional manipulation
- Sexual abuse
- Psychological abuse
- Social abuse
- Cultural abuse
- Financial abuse
- Coercive control
Abuse can be experienced by any person, regardless of age and gender and it’s extremely important to be aware of the signs of abuse – you can learn more about these signs here.
The legal system in Australia is working hard to provide protection for people who are in danger of experiencing abuse or those who already are. There are protection orders, like domestic violence orders, that can be used to restrict a person’s behaviour.
In NSW the law regarding abuse and coercive control is changing with the new rules coming into effect on February 1st 2024. These changes will see coercive control be considered a criminal offence with penalties such as imprisonment as being possible for the perpetrator.
Learn more about domestic and family violence here and the new coercive control laws here.
Myth #6 – Property settlements are always 50-50
No two property settlements are the same and in most cases, a property settlement is not 50-50. While for some people this may be the best option and they may decide to make a private agreement that reflects this – which is ok. However, in many cases, a wide variety of factors will influence the percentage split of the assets.
Every property settlement should be treated on a case-by-case basis, and if you apply to the court for a property settlement, a number of different factors will be considered when working out the asset distribution. These factors include:
- The length of the relationship;
- The ages of each party;
- The health of each party;
- If there are children of the relationship that are dependent;
- The current needs of each party;
- The future needs of each party;
- The contributions to the relationship of each party – including direct, indirect, financial and non-financial contributions.
The courts will also take the below general 4-step process in order to determine a property settlement:
- Review the details and the value of the assets and liabilities.
- Review the non-financial and financial contributions of both parties.
- Consider factors like the current and future needs of each party.
- Review the proposed split to ensure that it is just and equitable.
As every situation is unique, in many cases, a 50-50 split is not fair. The processes the court takes are also commonly used by lawyers if you use their assistance in determining a property settlement.
Learn more about property settlements here.
Myth #7 – Women always get custody of the kids
Similar to myth #4, this myth is based on traditional family roles.
While many women do have primary care of their children, a lot of men do too and the ultimate deciding factor for this is based purely on what is in the best interests of the child.
Family law decisions that impact a child must be made with the best interests of the child in mind regardless of whether the decisions are being made by the parents privately or through the court system.
Families have also evolved significantly and what works for one family will be different to another, so each case must be assessed and decided based on its unique circumstances.
If it is best for a child to spend more time and live with one parent the majority of the time, it doesn’t mean that the other parent is a bad parent or a bad person, it just means that the unique factors of your situation determine this to be best for the child.
Learn more about parenting agreements and arrangements here.
Myth #8 – A divorce always results in a fierce courtroom battle
In Australia, the family law system is flexible and provides a variety of options where you can tailor an outcome to suit your unique situation, including when you get divorced. And many people can resolve the issues that arise from a divorce without having to go to court.
To be clear, the divorce process itself is simple and straightforward and involves filing an application with the Federal Circuit and Family Court of Australia – you can learn more about this here.
When it comes to the courtroom, you may only see one when you’re trying to resolve an issue that arises when you get divorced, with the most common of these being parenting arrangements, property settlements, and spousal maintenance.
The court is seen as a last resort for resolving these matters, rather the system is set up to allow people to make decisions privately or with legal assistance. When issues are difficult to resolve other resources and processes like mediation and negotiation can be used and these can be done with the assistance of a family lawyer too.
It’s only when matters cannot be resolved using these means that an application for court orders can be made, so many people end up avoiding the need to go to court at all.
Myth #9 – Lawyers provide no value in family law matters
With the answer to any question at our fingertips thanks to smartphones and the internet, it’s common for us to misunderstand or misconceive the value of specialised services like those that a family lawyer provides.
The Australian family law system and the Family Law Act have been designed to allow people to resolve almost any matter themselves, without a lawyer and without the need of going to court. However, just because you can, it doesn’t mean that you should.
Any legal matter, particularly those that can affect you on such a personal level, like a family law matter, can be difficult to understand the complexities and often our clouded judgement can get in the way.
Working with a lawyer allows you to have an impartial party who can provide you with accurate and law-abiding information. They can answer your questions and ultimately, work with you to find an outcome that suits your situation.
If you’re involved in a legal matter, we highly recommend that you seek legal advice from an experienced family lawyer, so you can understand where you stand.
Don't fall for any family law myths
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Our family law team is highly experienced in all types of family law matters and aims to find a solution that suits you and your family.
We’ll provide you with advice, guidance, support and a resolution when you need it the most.
Work with Australia’s leading family law team today from anywhere in Australia – our services are available Australia-wide. Call us at any time on 1300 667 461 or book a consultation online using the button below.
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