The 8 Common Myths of Divorce in Australia

While divorce is something that none of us wants to think about, given that approximately 1 in every 3 Australian marriages ends in divorce, it is likely that many of us will experience a divorce in our lifetime. Even in 2015, divorce remains a taboo subject with many people not considering divorce until it happen to them and then find themselves unaware of their entitlements and the processes involved.

Brett Hartley, Hartley Healy Family Law Specialist Director, says there are numerous myths that continuously pop up online.

Below you will find a a list of the most common misconceptions Brett has encountered in the media or directly from clients – many of them wives who are unaware of their rights in the instance of a relationship break-down.

MYTH: I have been a stay-at-home mum with no income since marriage therefore I am entitled to nothing

FACT: The Family Law Act recognises contributions that you have made that don’t just include financial contributions. Your contributions towards domestic and household chores, having children, raising children, and otherwise to the welfare of the family are all taken into account by the Court. Also, the law recognises the fact that one parent staying in the home and looking after children frees up the other parent to not only earn an income, but to advance that parent’s career. Therefore, a contribution of caring for the children and staying at home is viewed as an indirect contribution towards the other one’s accumulation of wealth.

MYTH: My partner purchased our house before we were married therefore it will not be included in the divorce settlement

FACT: This is not correct. The first step in any property settlement in Family Law requires a balance sheet of all assets and liabilities that exist at the current date to be taken into account. One must identify and value each and every asset and resource no matter when it was brought into the relationship. It doesn’t mean everything will be divided 50/50 in all cases and you will need to get advice from a specialist Family Lawyer as to your specific entitlements.

MYTH: Superannuation is not considered during settlement

FACT: Superannuation is always considered during any property settlement. Even though superannuation, in many cases, is not property (that is you cannot access it and spend it straight away), it is still notionally treated as property and included in the available assets for division. The law now allows for superannuation interests to be split between separating couples.

MYTH: I have been in a de facto relationship for over five years, but we were never married so I am not entitled to any of my partner’s property

FACT: This is not correct. If you separate from a de facto relationship or from a marriage then the law regards your relationship as having started when you first started living together. Even if you are only married for a short period of time, the law will regard the commencement of cohabitation as being the starting date for looking at relevant contributions that you have both made.

MYTH: I am in a same-sex relationship therefore family law does not apply to us

FACT: This is not correct. In most states in Australia (including Queensland) the law is the same in relation to property settlement for a same-sex de facto couple as it would be if you were in a heterosexual marriage. As long as you can prove that you’re in a de facto relationship and certain other criteria is satisfied (such as relationship lasting for more than 2 years or a child being born in the relationship) then one may have an entitlement to property settlement.

MYTH: I am already married, it’s too late to get a pre-nuptial agreement

FACT: Under Australian Law, you can still enter into an agreement (even during marriage) to divide up your assets in the event of any future separation. You do not have to have the agreement finalised before you marry. In some states in the United States, this is the law. You may have heard of these agreements referred to as “Pre-nuptial Agreements”. In Australia, we refer to them as “Binding Financial Agreements” and they can be entered into prior to, during or at the end of a marriage or de facto relationship. A specialist Family Lawyer will know the best type of agreement to draft depending upon your particular circumstances.

MYTH: Our divorce is amicable, however to get a divorce we must go to court

FACT: In order to actually be divorced you need to lodge an Application for Divorce with the Court. That can be done in most cases without the necessity of a Court appearance and can also be done online. In order to obtain a property settlement you don’t have to go to Court and you should avoid fighting in Court about property settlement if at all possible. If you and your partner come to an agreement, then that agreement can be documented, signed by you both and lodged in Court and approved. In most cases, that won’t require an appearance in Court at all.

MYTH: I am considering a divorce. I should be stealthy in getting my affairs in order and hide my savings

FACT: There is no need to do this. Sometimes we hear advice from financial advisors, accountants and other lawyers that people should, by stealth and prior to separation, accumulate as much documentation and information as they can. There is simply no need to do this nor to worry or concern yourself about it. The law requires disclosure of relevant financial documents by each party prior to going to court and your family law solicitor will know what documents and information to ask for and how to get it.

Hartley Healy is Brisbane’s leading specialised family law firm, practicing exclusively in family and de facto law. With a combined experience of more than 80 years, Hartley Healy’s five accredited family law specialists provide ethical advice and guidance, to all clients. Hartley Healy simplifies the many facets of family law, with particular expertise in commercial matters, property settlements of high net worth individuals and international family law cases. Hartley Healy is dedicated to settling out of court and advocates for the use of mediation on matters to limit emotional and financial stress to ensure clients can move on with their lives as quickly as possible.

For more information, please visit: www.hhfamilylaw.com.au