Published On: Fri, Nov 17th, 2017

Busting Myths about Divorce Litigation

Many people claim to know what to expect when ending a marriage. There are a number of popular myths that mislead people about the common outcome of cases and what rights they are/are not entitled to.

A lot of people may have seen their parents or another relative go through a separation and think they understand everything about it. This can lead to people having a disadvantage in court because they don’t know or have assumed the facts.

Divorce lawyers in Sydney are specialists in this type of family law litigation and will help their clients to make the most informed decisions for their families’ future. It’s best for these clients to be equipped with as much accurate knowledge as possible by knowing the truth behind common myths and misconceptions.

gavel judge court case ruling

photo by Okan Caliskan via Pixabay

Assets are not always split 50/50

This is probably the biggest misconception people have about marriage breakdowns. There is no legal presumption or mathematical formula for family law settlements. The division of a couple’s assets is very rarely done evenly. This is because there are a number of key factors outlined in the Family Law Act that a court uses to determine the outcome.

These factors include;

  • The overall length of time the parties where in a relationship
  • The financial contributions to the relationship
  • The ongoing needs of the relationship and any children present

In a lengthy marriage it is often that one party has made the majority of financial contributions. This does not however mean that they will get the majority of the assets. The homemaking and parenting work that the other party may have done will also factor in.

One of the parties may have sacrificed their earning abilities to dedicate themselves to homemaking and child rearing. Because of this it is considered unfair that they get only 50% of financial assets as it will be harder for them to become financially stable after the marriage.

A shorter marriage in which one party brought in a large amount of capital will usually result in that party retaining the majority of their assets.

A 50/50 split is more likely if the contribution of both parties can be proven to have been genuinely even, in terms of finances, homemaking and parenting.

Fault Is Irrelevant

In Australia, there is no fault jurisdiction in the case of marriage separation. Moral issues like the infidelity of one party have no bearing on the cases’ outcome. It also has no effect on child custody.

Australian Family Law is not designed to ‘punish’ either party for the reasons for separation. Instead, the law in Australia considers the futures of both parties leading separate lives and most importantly what that will mean for the welfare of any children.

Pets are Property

Even though it may seem like cats and dogs are part of the family, the law considers them to be property. Animals have no conscious ability to consent or weigh in on where they will end up.

Unlike children, there is no concept of ‘time sharing’ with a pet. One party will own the pet, the other will not.

Australia DOES have Pre-nuptial Agreements (BFA’s)

Commonly referred to as “pre-nups”, pre-nuptial agreements are a common part of American marriage law. They allow both parties in a marriage to agree on the distribution of assets should a separation ever occur. It has been wrongly assumed that Australia has no equivalent law.

In fact, a BFA (Binding Financial Agreement) is functionally identical to a pre-nuptial agreement and is available to all Australian couples. Best divorce lawyers in Sydney are able to help couples’ enter into a BFA in order for them to save time, stress and money in litigation should separation occur.

A Divorce is not Necessary to Begin Financial Settlement

Contrary to popular belief, papers do not need to be filed before separating parties can begin negotiating a financial settlement. However, any court proceedings need to occur within 12 months of those papers being filed.

Mothers are not Necessarily Favoured over Fathers

It is commonly believed that courts will favour mothers in cases of child custody and assets division because of systemic sexism against fathers. This is entirely false.

The reason that mothers often end up with more time with the children is because they are often spending more time with them pre separation. When a court evaluates the impact separation will have on a child’s life, it is most often that the child will be used to more nurturing and care from the mother.

The time each party gets with their children is fundamentally determined by the arrangements that were in place before the separation. This also means that mothers may be perceived to unfairly receive part of the fathers’ assets.

This is actually because mothers have often sacrificed their careers in order to raise children and maintain the family home. Therefore they are less likely to maintain financial stability and the lifestyles of their children post separation.

Final Thoughts

No family law case is the same as another. The outcome of each case will vary drastically as Australian Family Law is designed to enable the fairest possible outcome.

The myths around these settlements are believed and perpetuated by an alarming number of Australians. This is why it’s imperative that people seek out the services of experienced divorce lawyers in Sydney who understand the full extent of family law.

Author: Colin Steinway

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