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If I separate, my property will be split 50/50
Your partner is automatically entitled to half of everything you own right? Wrong!There is no legal principle in family law that your asset pool is divided equally. It is not the starting point, but it can be the end result. The outcome in your case will depend on your circumstances. Every case is different. No two cases are exactly the same.
Over a long marriage it is often the case that one party has made significant financial contributions, while the other has made significant homemaking and parenting contributions. Alternatively, it may be that the parties have each contributed both financially and to the welfare of their family.
In these situations the court may regard the parties’ respective contributions substantial enough to warrant an allocation of 50% of the net asset pool to each of them. In a ‘short’ marriage where one party came to the marriage with significant assets, their financial contribution will outweigh that of the other party and it is therefore unlikely that the court would divide the assets equally.
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I’m in a de facto relationship after “6 weeks”…”6 months”…”2 years”
It is commonly thought that if you live with someone for a certain period of time you will automatically be considered to be living in a de facto relationship. This is not the case.
For a relationship between two parties to be classified as “de facto” their relationship must be “marriage like”. To determine whether a relationship is “marriage like” there are a number of factors which the court must consider. While the length of time the couple have resided together is one factor, the court will also consider things such as: the degree of financial dependence, whether there is a child of the relationship and the ownership, use and acquisition of property.
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The wife always gets “more than 50%”…”60%”…”70%”
The idea that the wife always comes out on top in a property settlement is definitely not a matter of principle.
As described at myth #1, contributions in a long marriage will quite often be assessed by the court as equal. Once the court has assessed contributions, it then must consider what are commonly known as “the future needs factors” which are set out in section 75(2) of the Family Law Act 1975 (Cth). The factors include: which party has the care of the children, the income and earning capacities of both parties and the effect of the duration of the marriage on both parties’ earning capacities.
In a ‘long’ marriage where the parties have built up their assets together and the wife has been the homemaker and primary caregiver to the children, it may be the case that the court will award an adjustment in her favour of 5-10% of the net asset pool because of her future needs.
Again, it is most definitely not a starting point, nor a guaranteed outcome.
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It’s not in their name so they have no claim
If property is listed in the name of just one party, it is not the case that that person will automatically have a greater entitlement to that property.
An asset in the name of either party becomes an asset of the marriage and will be considered part of the asset pool.
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I have to be divorced in order to commence a property settlement right? Wrong!
It is commonly thought that in order to divide matrimonial assets between a husband and wife they first need to be divorced.An application for divorce is a separate application to that of a property settlement.
Parties can get a court order dividing their assets any time after separation. However, once a certificate of divorce has been issued, a limitation period of 12 months commences within which either party must apply for a property settlement or spousal maintenance. Therefore it is a good idea to start thinking about your property settlement prior to, or simultaneously with, your application for divorce.
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Assets held by companies or trusts does not form part of the asset pool
Many people think it is possible, or even easy, for one party to “hide” assets by registering them in the name of a company or trust. This is not the case.If a party to a marriage has the control of or an interest in a company or trust then assets held by that company or trust may be considered a part of the asset pool. Unlike myth #4, this is not always so easy to prove and requires consideration of trust and company documents.
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If my spouse has had an affair I will be entitled to more
Australia has a ‘no fault’ system when it comes to divorce and property settlement. This means that it is irrelevant why the marriage ended. Situations of domestic violence, cheating and lying may understandably be of great importance to a client. However, the Family Court will not usually take these matters into account when dividing assets.
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If I come to an agreement and split my assets there is no need to go to court
It is very important to formalise any property settlement in a way which the Family Court recognises and will enforce. This can be done by way of consent orders or a binding financial agreement.If you do not formalise your agreement may leave yourself open to your spouse or partner returning and asking for more in the future.
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The Mother will always end up with custody of the children/the Father will only get every second weekend
This is untrue!When deciding interim or permanent living arrangements for children the Family Court must consider what is in their best interests. The court is obliged to take into account a range of factors, such as, any view expressed by the child, the nature of the relationship between the child and each parent and the capacity of each parent to care for the child.
Each case is decided on its own facts. There is no presumption favouring one party over the other.
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I need my spouse to sign the divorce “papers”
This myth is exacerbated by its portrayal in many American movies and TV shows. In Australia it is possible to lodge an application for divorce without the consent of the other party. Once an application has been lodged in the Family Court it will be listed for what is known as a “divorce hearing”. If there are no children under the age of 18 years, a divorce may be granted without either party attending the hearing. If there are children under the age of 18 years, one or both parties will be required to attend the hearing. If the application for divorce is not disputed at the hearing and the court is satisfied that the requirement for divorce – the irretrievable breakdown of the marriage – is made out, then a divorce order will be granted.
For more information please contact Carr & Co on 9322 8000 or email us at contactus@carrco.com.au