Family law facts and fiction

As more people have personal experiences with Family Law issues, the difference between fact and fiction sometimes gets blurred.  Below are some of the common misunderstandings:

1. Fiction – That a 50/50 division of relationship property applies after a couple have been living together for two years.

Fact – the presumption of a 50/50 division of relationship property under the Property (Relationships) Act 1976 does not apply until a couple have been married, in a civil union or living together for 3 years.  There are exceptions to this and in some circumstances equal division can apply before the three year period.  For example, if there is a child of the relationship and it would cause serious injustice if relationship property was not shared.

2.  Fiction – If I keep my bank accounts and any other assets completely separate then my partner won’t be entitled to half even if we’ve been together for more than three years.

Fact– under the Property (Relationships) Act, separate property may become relationship property  depending on how the asset/funds are used.  The best way to protect any separate property is to enter into a Contracting Out Agreement with your partner (formerly known as a “prenuptial” agreement).  Without a Contracting Out Agreement some or all of your “separate” assets may become relationship assets to be shared equally in the event that you separate.
 
3. Fiction – that the Family Court favours mothers and so fathers have less chance of “winning” child care disputes.
 
Fact – the Family Court’s main consideration is what is in the best interests of the children.  When considering this the Court does not place any favour with mum or dad, nor do they look at who is “winning”.  Instead they focus on what will work best for the child.

4. Fiction -  When you separate, if you record in writing who is keeping what property, and you both sign it then it is a legally binding agreement.

Fact -  For a Separation and Relationship Property Agreement to be legally binding, both parties must each receive independent legal advice on the effects and implications of the Agreement before they sign it, and their lawyer must also witness their signature.

5. Fiction – My children live with me and only see the other parent sometimes so I can make all the decisions about the children and it’s up to me when or if the other parent gets to see the children.

Fact – Even though you may be the primary caregiver for the children, you may not be their only guardian.  If you and the other parent (or someone else) are guardians of your children, then you both have a say in the big decisions effecting your children.  Guardianship issues include schooling, religion, healthcare, where the children live, moves out of town, overseas holidays etc.  Children generally benefit from a good relationship with both parents, so unless there is a good reason why the other parent should not see the children, you should discuss with the other parent the best ways for them to see the children.

If you would like further information on any Family Law or Relationship Property matter or would like to arrange an initial consultation, contact us on (04) 473-6850.