TW: This article has mentions of domestic and family violence.
Here are some common family law myths we've heard, and whether they are true or not!
“I can’t get a divorce unless my partner agrees to it”
This is false! The only legal ground for getting a divorce is to prove that there has been an ‘irretrievable breakdown’ of the marriage and there is no reasonable likelihood that the marriage may reconcile. Even if your partner does not agree to the divorce or want a divorce to occur, you can make an application on your own.
“My partner cheated so I will get more out of the property settlement.”
Incorrect! The Family Law Act 1975 (Cth) introduced the notion of ‘no-fault’ divorce. Prior to this legislation, one party could prove that the other party engaged in infidelity in order to have the offending party punished in some way, for example through the asset division.
However, the current law stands that reasons for divorce such as infidelity are irrelevant when determining the asset distribution split. In order to determine the property settlement split, the court will look at what is just and equitable, by examining factors such as the net value of the couple’s assets and liabilities, and the couple’s financial and non-financial contributions to the marriage and family.
“I automatically am entitled to 50/50 custody of my children”
The court puts the child’s best interests as a paramount consideration when determining parental responsibility, and under Australian law, children’s best interests often involve having a meaningful relationship with both their parents, so long as they are kept safe from harm. However, a 50/50 parental responsibility split is not always ensured, and numerous factors are considered including certain aspects of parenting and who the primary carer may be, ability of both parents to maintain an amicable co-parenting relationship, and special needs of the child.
“Since I have separated with my partner, one of us need to move out”
Not necessarily, but it is recommended! One of the requirements for a divorce is for both parties to be separated for 12 months, however you and your partner can be separated under one roof. There are many reasons why couples do this, including financial dependence or children. So in order to prove that you were separated for 12 months whilst under the same roof, parties will need to demonstrate that they had separated finances, were not sleeping in the same bed, told family and friends about the separation, and ceased almost all social activities between each other. Parties can make this claim by preparing a written statement, called an affidavit.
“Domestic or family violence is only physical abuse”
Abuse within relationships occurs in many forms, even an individual’s behaviour towards their partner may constitute abuse. Whilst physical abuse is the most well-known and evident form of abuse, other forms include verbal abuse, coercive control, financial abuse, emotional manipulation and sexual abuse. Australian law recognises that domestic and family abuse extend beyond the physical aspect, through enforcing Apprehended Violence Orders that can restrict a person’s actions and behaviours.
If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.