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    5 common misconceptions about divorce, separation and property

    30/04/21 3:07 PM

    Divorce and separation in Australian family law are two areas that are riddled with misunderstanding. Whether your knowledge of separation and divorce comes from American television, that friend you have who recently got divorced or your own experience, these 5 misconceptions will help to clear up any grey areas you might have around the topic.

    1.     Property always gets split 50/50

    When the court assesses the way a property pool should be divided, they may sometimes start at 50/50 (on a contributions basis) but it doesn’t necessarily mean that’s where you’ll end up. A number of other factors are later considered by the Court which are often referred to as “future needs” which can change the percentage split to favour one party over another. Things such as the care of children under the age of 18, household duties and responsibilities, income disparity, age and state of health of the parties, and responsibilities to support other persons all weigh in to determining a final percentage split. Furthermore, the Family Law Act gives the Court the discretion to consider “any other fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account”, which basically means that the Court can consider anything it thinks relevant in determining a property split.

    2.     Someone needs to be at fault

    When applying for a divorce, you don’t need to tell the court that the marriage broke down because someone did something wrong. The Court is not interested in why you separated, although sometimes this may be considered in property or parenting matters to determine other issues. When getting divorced, the only thing the court is concerned with is whether there has been an “irretrievable breakdown of the marriage”.

    3.     If you have an affair, that means you’ll get less property overall

    Somewhat related to the above point, the court does not pay any attention to whose fault the separation was and as such adultery is not considered relevant when determining a property split except for in very unusual circumstances. Having had an affair will have often have very little to no impact in how the Court divides the property pool.

    4.     Court is the only option

    Most property and parenting matters can be dealt with outside of the Courtroom. That is not to say that their agreement is any less valid than if they were to go to Court, it just means that if the parties reach an agreement, there is a legal process they can use to have their agreement made binding without actually going to Court. These agreements are referred to as Consent Orders. In most cases, individuals are able to come to an agreement before being presented before a judge. That said, there are a few more complex cases that will require court intervention at some point in the process.

    5.     You have to be divorced to do a property settlement

    There is no requirements for you to be divorced in order to do a property settlement. However, once you are divorced a 12-month time limit commences which means you will have 12 months to finalise your property settlement, after which you need to ask special permission from the court to commence property proceedings. In the case of de facto couples, the time limit is increased to 2 years from separation.

    If you would like more information on separation and property settlements, please contact us at Frank Law to speak to one of our experienced family lawyers on (02) 9688 6023 or via frank@franklaw.com.au.

    This is not legal advice. 

    Ben Woodward

    Written by Ben Woodward