If you’re in the unfortunate situation of going through a relationship break-up you have probably heard all sorts of ‘advice’ from well-meaning friends and family.
Family and friends are a great source of emotional and physical support when you have separated, however good legal advice is essential so that you are aware of your rights. Being properly informed can help you to finalise your property affairs and come to workable arrangements for the ongoing care of your children.
In this article, we clear up some common family law fallacies and hope to provide useful information to assist you with your family law matter.
The children will spend equal time living with my ex-partner and me
Not always. The concept of equal shared parental responsibility was introduced into the Family Law Act 1975 (Cth) (“the Act”) to encourage and acknowledge the benefits of shared parenting after separation.
Equal shared parental responsibility means that each parent is jointly and equally responsible for significant long-term matters and decisions concerning their children. This includes decisions about their health, welfare, education and religious and cultural upbringing.
The concept however is often misinterpreted as a ‘default’ position whereby the children will spend equal time living with each parent. Whilst the Federal Circuit and Family Court of Australia (“the Court”) must consider the children spending equal or significant time with each parent, it is not a ‘given’ and each case will be assessed upon its particular circumstances and merits.
The Court has an overriding obligation to consider the best interests of the children and a range of factors will influence its decision. A practical approach must be taken regarding what is realistic in terms of family dynamics, work commitments and other responsibilities. Only if equal living arrangements are practical and in the best interests of the children will they be ordered.
We both keep our separate superannuation accounts
This is not necessarily so. Superannuation is treated as property of a marriage or defacto relationship and forms part of the asset pool for consideration and potential division after a relationship breakdown.
The splitting of superannuation interests between married or de facto partners may occur by virtue of a Court order, superannuation agreement between the parties, or it may be included in consent orders of the Court reached between the parties.
Various steps are involved – the parties will need to obtain certain information from the relevant superannuation fund to enable a valuation of the interest, and will need to have proposed splitting arrangements considered by the relevant superannuation fund before splitting arrangements can be finalised. Once the fund is split, a separate account for the non- member spouse can be created. Alternatively the amount split from one parties’ superannuation to the other will be transferred to another superannuation fund of the recipient’s choice. It is important to understand that the new fund or any split amount remains subject to all of the usual existing superannuation laws. That includes laws as to the age in which it can be accessed.
Different types of funds are valued in different ways. The laws relating to superannuation splitting are complex and must be considered in the context of other non-superannuation assets in the asset pool. Comprehensive legal and financial advice is recommended when determining whether a superannuation split is appropriate.
You cannot divide your property until you get a divorce
Couples must be separated for 12 months before being eligible for a divorce but may commence negotiations and finalise a property settlement before a divorce is granted. There is no requirement to wait for any length of time before finalising property settlement matters. That being said it may not be wise to rush into it.
The finalisation of a divorce however triggers a 12-month limitation period within which a party may make an application to the Court for orders relating to a property settlement. In the absence of an extension of time being granted by the Court the parties will be unable to have orders of the Court for property to be adjusted between them if not commenced within that time. For defacto couples the relevant limitation period is 2 years from the date of final separation.
The bread-winner should have a greater entitlement to the asset pool
Not so. In addition to financial contributions, the non-financial and indirect financial contributions of a party are included when determining a property settlement. These contributions are not given a dollar value however will be important when making a percentage adjustment as to the parties’ entitlements to share in the overall asset pool.
Non-financial contributions are contributions considered to have assisted in increasing the size and value of the asset pool. They include the care and welfare of children, management of the household and finances, and labour used to improve or conserve the home (such as renovating or landscaping). For example, a partner who stays home to raise children is considered to make an indirect financial contribution as a homemaker by enabling the other partner to contribute financially through his or her employment or business efforts.
In the well-known case of Whiteley and Whiteley (1992) FLC 92-304, the wife’s efforts of modelling, critiquing, discussing and evaluating the artist Brett Whiteley’s artwork were considered a significant non-financial contribution and an inspiration to his financial contributions to the marriage.
Family law matters end in a court-room battle
Despite Hollywood images of ex-couples embroiled in court-room combat, most family law matters settle without the parties needing to attend Court.
Commencing proceedings for the division of property will increase legal costs and reduce theasset pool available for division. It will also contribute towards anxiety. Court proceedings should usually be considered a last resort and the law requires that parties make genuine efforts to resolve disagreements and participate in dispute resolution before commencing Court proceedings. The objectives of these ‘pre-action procedures’ are to:
- encourage early disclosure through the exchange of information between the parties;
- minimise the need for legal action by reaching an early settlement;
- build a process to resolve a matter quickly and to limit costs; and
- if proceedings are necessary, assist in their efficient management by identifying the actual issues in dispute.
It is important to be guided by expert advice when resolving your family law matters. Even if you and your ex-partner are amicable, it is wise to legally finalise your property affairs so that you can both move on with your lives. It is equally important to formalise the terms of any settlement reached.
The Court has a broad discretion when determining family law matters. Experienced lawyers will be able to advise youas to “what the Court would likely do if it was to decide the matter” and that should always be considered when negotiating and agreeing on an out-of-court settlement.
If you or someone you know wants more information or needs help or advice, please contact us on (08) 8344 6422 or email [email protected].