The 9 Myths of Separation and Divorce

As Brisbane and North Lakes leading Family and Divorce Lawyers, we tell people accurately where they stand. 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 incorrect or misleading.

Every family law matter is different and it is important that people dealing with separation or divorce seek expert 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.

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.

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.

Conclusion

The important thing to remember is that that no two cases are the same and the Courts have a very wide discretion to make decisions, which can give rise to what appears on face value to be different outcomes. Don’t rely on friends, family or Google. It is essential you obtain independent legal advice about your particular circumstances.