If you are going through a break-up, you may hear all sorts of ‘advice’ from well-meaning friends and family.
Friends and family can offer strong emotional and practical support after separation. However, legal advice is essential so you understand your rights. Good advice helps you finalise property matters and agree on arrangements for children.
In this article, we clear up common family law myths and provide useful guidance for your situation.
The children will spend equal time living with my ex-partner and me
Not always. The concept of equal shared parental responsibility comes from the Family Law Act 1975 (Cth). It encourages shared decision-making after separation.
Equal shared parental responsibility means both parents share responsibility for major long-term decisions. These include health, education, welfare, and cultural upbringing.
Many people wrongly assume this means children will automatically spend equal time with each parent. The Court does consider equal or substantial time, but it does not assume this outcome.
The Court always prioritises the best interests of the children. It considers family dynamics, work commitments, and practical arrangements. Equal time only applies if it is both practical and in the children’s best interests.
We both keep our separate superannuation accounts
This is not always the case. Superannuation is treated as property and forms part of the asset pool after separation.
Superannuation can be split by court order, superannuation agreement, or consent orders. A financial agreement may also deal with it.
The process often requires fund information, valuation, and legal advice. Once split, the receiving party holds a separate account subject to superannuation rules.
Different funds use different valuation methods. Superannuation splitting is complex and must be considered alongside other assets. Legal and financial advice is strongly recommended.
You can’t divide your property until you get a divorce
You do not need to wait for a divorce to divide property. You can start negotiations after separation.
However, divorce triggers a 12-month time limit to start property proceedings.
De facto couples must start property proceedings within two years of separation.
The breadwinner should receive a greater share of the assets
This is not correct. The Court considers both financial and non-financial contributions when dividing property.
Non-financial contributions include caring for children, managing the home, and supporting improvements to property. These contributions do not have a fixed dollar value but can influence the final outcome.
For example, a partner who stays home to care for children supports the other partner’s ability to earn income.
In Whiteley v Whiteley (1992) FLC 92-304, the Court recognised non-financial contributions as significant in the overall assessment.
Family law matters always end in a court battle
Most family law matters settle without going to court.
Starting court proceedings can increase stress and reduce the value of the asset pool. The law encourages parties to try dispute resolution before litigation.
Pre-action procedures aim to:
- encourage early disclosure of information
- support early settlement
- reduce legal costs
- identify issues early if court becomes necessary
Key considerations
Legal advice is important when dealing with family law matters. Even if you remain on good terms, you should formally finalise property arrangements to avoid future disputes.
The Court has wide discretion in family law cases. You should consider likely court outcomes when negotiating a settlement.
If you need advice, contact us on (03) 9422 5439 or email [email protected]. Speak to our Lawyers in South Morang or Warrnambool today.