6 Common Myths about Family Law in Australia

Family law is often misunderstood, with many people relying on [...]

Family law is often misunderstood, with many people relying on myths or outdated information when navigating separation, parenting arrangements, or property matters. These misconceptions can lead to unnecessary stress, poor decisions, and unrealistic expectations. Below are six common myths about family law in Australia and what you need to know instead.

1. You have to be divorced before you can divide property

You do not have to be divorced before dividing your property however once you are divorced you trigger a "limitation period".

A limitation period is the timeframe that you are required to commence Court proceedings in the event you are unable to reach an agreement about an issue in dispute.

You have 12 months from the date of divorce to resolve your property matter or commence court proceedings.

If you are in a de facto relationship the limitation period for property matters is 2 years from the date of separation.

What happens if I have missed the limitation period? You can seek leave from the Court to extend a limitation period in some circumstances. If you are out of time, you should make contact with a lawyer as soon as practical to discuss your matter.

2. Children can choose where they live once they are 12 years old

The wishes of children are considered when making decisions about parenting matters depending on various factors, such as their age and maturity, but there is no fixed age in family law where a child can choose where to live.

The Court and people working within family law will regularly discuss the best interests of the child and this will inform the manner in which decision are made in relation to children.

Why can't my child choose? The law, and people working within family law, recognise that parental separation can be a difficult time for children and there is a lot of evidence to suggest that putting children in a position where they feel they need to "choose" is not in their interest.

3. Children usually spend week-about time with their parents

Deciding where children live and what time they spend with each parent is informed by the best interests of the child. In some cases it may be considered in the best interest of a child to live in an equal time arrangement with their parents. These are usually matters where parents:

• Parents are in an amicable relationship and capable of making decisions together in the best interest of their children;
• Parents live within close proximity to each other and other important locations, such as school and extra-curricular activities; and
• Children are at an age and maturity level where they are able to cope with a equal time arrangement.

The Court is not require to consider, or make orders for equal time, and can elect other options such as substantial and significant time, or where the child is at risk, supervised or no time.

4. All of our assets and liabilities will be split 50:50 after separation

Family law in Australia has a legislated process it uses to consider how property should be divided following separation where it considers:

1. What assets and liabilities are available.
2. What contributions (financial and non-financial) were made by either party
3. The current and future circumstances of parties
4. What is just and equitable settlement.

In addition to the above the Court also considers things like the length of the relationship and circumstances of the relationship, for example, if there was a history of family violence.

There is no guarantee that assets will be split 50:50, although it is possible, having considered all of the above, that an equal division of assets and liabilities is considered just and equitable.

5. Property which belongs to me in my sole name is not considered in my property settlement

The first steps of a property settlement is to determine the assets and liabilities of the parties, including those assets that they own together and separately from one another. This means that property in your sole name will be considered as part of the process however the way it is treated will depend on various factors including when the property was acquired and how the property was paid for.

This also includes assets that you have purchased, post-separation this is why it is important to resolve your family law property settlement as soon as possible following separation.

6. My ex has to maintain me in the standard of living that I have become accustomed.

Whilst the court can consider the current and future circumstances of spouses when determining property matter, the Court has a pragmatic approach to determining a person's need for spousal maintenance and the other person's ability to pay spousal maintenance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.