Most people know someone who has been affected by a family breakup. It is usually a very stressful and emotional time where people are anxious about divorce, the property settlement and the emotional wellbeing and care arrangements for children.
Unfortunately this is reflected in a great quantity of inaccurate statements, often regarded as fact by those, in the community.
Every family law situation is different and it is important that people get the right advice and are able to make informed decisions about their family and their own future before entering into any agreement or going to court.
In this article we have identified the top 5 issues where myths exist and we have set the record straight.
Myth 1: You need to be divorced before you can divide your property
There is no provision that requires a divorce to be finalised before a financial settlement can be negotiated.
You are only entitled to a divorce after 12 months of separation, however once you become separated you can immediately start negotiating and even conclude a financial settlement.
In fact, if you have not finalised your property settlement by the time of your divorce you should do so within 12 months as there is a general time limit of 12 months to start Court proceedings for property settlement after you are divorced. The Courts do have an ability to extend time in certain circumstances.
Myth 2: I owned it before we got together, so it’s mine if we separate
A person will not necessarily be able to keep those assets in their own name that they brought into the relationship or that were paid for individually during the relationship.
The factors which must be taken into account when the Family Law Courts consider how property is to be divided are set out in the Family Law Act. There is no universal equation applied, property settlement is based upon the entire circumstances of the relationship including considerations of the various contributions made by both parties to the accumulation of the assets and the Court will then use its discretion in assessing and determining the matter.
The Family Law Courts may give greater weight to the individual contributions of one party in a very short relationship, which may result in that party being awarded an asset that they initially brought into the relationship.
A lawyer practicing in family law can advise you as to what factors will likely be taken into consideration by the Courts when providing detailed and specific advice to clients about their specific circumstances.
Myth 3: Property will always be split 50/50 in a property settlement
This is usually the most common myth in family law. There is no rule or presumption that parties have to divide their assets equally when they separate.
As outlined above there is no universal equation applied, property settlement is based upon the specific circumstances of each case and an exercise of discretion by the Court in determining the matter.
The percentage division outcome depends on many factors, which include:
- The length of the relationship;
- The financial contributions of each person;
- The non-financial contributions of each person; and
- The current and future needs of each person.
The longer the relationship, the more likely it is that the Courts will consider the contributions and future needs of the parties as being somewhat equal, although case specific factors will need to be considered.
Myth 4: The assets are held by a company or trust, so they are excluded from a property settlement
When a marriage or de facto relationship breaks down property can be divided between the parties.
The definition of “property” is very broad under the Family Law Act. In the case of assets owned by a company or trust the Courts will look at whether and which party has control over the company or trust. Even if a person is not a director, if the entity is under the control of one of the parties the Court has the power to deal with the assets as an asset of the marriage.
Usually, assets held by a company or trusts will come within the definition of property of the relationship.
Myth 5: Pre-nuptial agreements are only used in the USA
The use of Pre-nuptial agreements or “pre-nups”, as they are often known, has been popularised, sometimes sensationalised by their use in the USA. There have been plenty of newspaper stories and even movie storylines about them and their enforceability.
So, do we have them in Australia?
In fact, we do. In Australia they are known by the somewhat less sensational name of Binding Financial Agreements or BFA’s.
A BFA is often used as an asset protection mechanism by people going into a new relationship or marriage allowing a couple to agree in advance on an acceptable division of assets. After a relationship breaks down, a BFA can reduce the financial stress of a separation and allow the couple to amicably separate without the need for costly, time-consuming and stressful court action.
BFA’s must be properly drafted and executed and must comply with certain requirements to ensure the agreed property distribution provided in them is enforceable, so it is sensible to discuss this with your lawyer to ensure your assets are protected. Importantly for a financial agreement to be binding and enforceable each of the parties to it must receive independent legal advice as to the effect of the agreement on their rights and as to the advantages and disadvantages of entering into such agreement,
No two family law cases are the same and urban myths don’t usually apply. The Courts will always take into account the individual circumstances of each case before applying a wide discretion to determine property settlement.
It is important to obtain independent legal advice from experienced family law solicitors who will help you to understand the processes involved concerning your particular circumstances.
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].