The 9 Myths of Separation and Divorce

As Family and Divorce Law Specialists across Brisbane and at North Lakes, we tell people accurately where they stand because Family and Divorce law is all we do, and we do it very well. 

We often hear that from clients when we first meet with them that they know what to expect in their situation because a friend/ colleague/ family member went through a divorce or separation. Sometimes they’ve found the information on Google or Facebook. More often than not, the “advice” that they have been given is incomplete, incorrect or misleading.

Every family law matter is different with individual facts and characteristics, so it's important that people dealing with separation or divorce seek specialist advice to enable them to make informed decisions about their family circumstances and their future. 

 

Myth 1: All Separations End in a 50/50 Property Division

There is no legal rule that parties have to divide their assets evenly at separation. The percentage outcome depends on many different factors including:

• The length of the relationship;
• The financial contributions of each party;
• The non-financial contributions of each party; and
• The current and future needs of each party.

The reality is that a 50/50 split is actually quite rare.

Myth 2: I’m entitled to 100% of what I put into the Relationship

There is no rule that people are reimbursed all of the earnings or assets they put in. A person will not usually get back their earnings, or all their financial contributions, and sometimes may not even be able to keep those things that they brought into the relationship or paid for during the relationship. It all depends on each person’s overall contribution to the relationship (including non-financial contributions) and their future needs. Superannuation is also property and can be, and usually is, split.

Myth 3: Where Separation is the Other Party’s Fault, They have to pay for it.

Unlike some jurisdictions such as in the United States, Australia is a “no fault” jurisdiction. Questions of conduct, good or bad, do not come into play in property settlement. Infidelity, for example, has no impact on the division of assets. Family law is not there to punish parties for separating.

Myth 4: All Family Law Disputes Go To Court

The vast majority of people who separate are able to come to an agreement about the division of their assets without going to Court. Agreements can be made through mediation or through negotiations in writing between the parties and their solicitors. Most matters are able to be settled through the process of negotiation, thereby saving both parties in legal fees. The best way to document an agreement is by way of a Binding Financial Agreement - it's usually cheaper and quicker.

Myth 5: “Possession is Nine Tenths of the Law”

Whether you or your partner are the registered owner of property is irrelevant for the purposes of family law. The property of one or the other, or of both parties to a relationship is considered property of the relationship. Owning an asset doesn’t necessarily mean the registered owner will end up with that asset at settlement.

Myth 6: Assets within Companies or Trusts are protected from a Property Settlement

The definition of ‘property’ in Family Law is wide. Whether trusts and/or companies are included in property to be divided largely depends on who is in control of the trust or company. More often than not, trusts and companies controlled by a party do come within the definition of property and therefore do form part of the asset pool that is divided. Superannuation is also property, and also can be split.

Myth 7: Family Law matters take forever and cost a fortune

The vast majority of matters are able to be negotiated without the need to go to court. With good lawyers, and goodwill on both sides, matters can be negotiated and resolved in a relatively short time, and at modest cost. It is only in extreme cases that significant costs are incurred – something we try to ensure doesn’t occur.

Myth 8: If You Agree on the Property Division, You Don’t Need to Involve Lawyers

There are many benefits of formalising agreements through lawyers such as tax reduction or rollover, stamp duty exemptions, future certainty, protection of rights and entitlements, estate planning, peace of mind and simplicity.  If its not done properly, there may be a "sting in the tail" with stamp duty, or tax.  Also, if its not done in a formal, binding way, then the other party may be able to come back for more later. Unfortunately, some people try to convince the other party to stay away from lawyers because they want to maintain a power imbalance that they thing they can use to their advantage.

Myth 9: You Have to Be Divorced To Do a Property Settlement

Parties do not have to be divorced in order to divide their assets in a property settlement. In fact, more often than not, the divorce comes well after the property division has been finalised.

What's the lesson from all this?

The important thing to remember is that that no two cases are the same, that the law is complex,  and the Courts have a very wide discretion to make decisions.  It's only when you go into the detail of the matter, and understand that some factors favour one side, and some factors favour the other, that one is able to predict the outcome through the courts.  Don’t rely on friends, family or Google. It is essential you obtain specialist legal advice from us about your particular circumstances. 

Get Advice, Get it Now, Get it Right, before you go Wrong. 

 

Macpherson Family Law are Specialists in Family Law and Divorce Law, and have offices across Brisbane ( Newstead, Milton and Murarrie) and also at North Lakes.  

Please keep in mind this is general advice only, and you should get specialist advice on your individual circumstances.