What are my rights in a divorce?

Many Australian adults will have a personal Family Law experience or anecdote (or two or three). And if you don’t, then you will certainly have heard some from family and friends. Unfortunately, these ‘anecdotes’ are often taken to be universal truths when, in fact, they are really just well-known myths.

We want to ensure that all Australians can tell fact from fiction when it comes to Family Law and their particular situations. So, today we’re setting out some of the most common Family Law myths and the truths behind them. 

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MYTH: If I get divorced, my spouse gets half of everything.

TRUTH: Property will be divided based on what is fair and equitable.

The idea that property and assets will be split 50/50 is one of the most common myths we hear as Family Law specialists. But the courts are actually far more concerned with what is ‘fair’ and will consider needs and contributions beyond monetary. In many cases, splitting things straight down the middle does not give you the fairest outcome.

To make a fair property settlement, the courts will take four steps:

1. Identify the financial and non-financial contributions by you and your former spouse;
2. Identify contributions to the acquisition and maintenance of assets;
3. Identify additional considerations, including responsibility to care for children; and
4. Assess each of your financial disclosure documents and determine the assets and liabilities of the property pool.

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They will then consider factors to determine what is a fair and equitable division. Some of these factors include:

• The age and health of you and your spouse.
• Your income and ability to earn income in the future.
• Whether you are caring for a child under 18 years old.
• Commitments relating to supporting yourself, a dependent or another person.
• Eligibility for a pension, allowance or benefit.
• The extent to which one person has contributed to the income, earning capacity, property and financial resources.
• How the length of the marriage affected the earning capacity of either you or your former spouse.
• The need to protect the person who wishes to continue the role as sole parent.
• Any child support that one of the parties is liable for.
• The terms of any financial agreement (for example, a prenuptial agreement) binding on the parties prior to the relationship.

So, at the end of a marriage, there is no automatic entitlement to 50% of everything (or anything). Your property division will be determined on a case-by-case basis, unique to your circumstances.

MYTH: I’ve never worked outside of the home. I’ll be left with nothing in a divorce.

TRUTH: The law recognises non-financial contributions such as caring for children and the home; and support of the spouse.

Family Law recognises that partners contribute to relationships in their own ways. Some may work outside of the home and contribute financially. On the other hand, some may care for the children and the home and contribute non-financially. Each of these contributions is important and will be considered when it comes to the division of the property pool.

MYTH: My partner has super, but I don’t. If we divorce, I’m not going to be able to access any of that super and will struggle to retire.

TRUTH: Superannuation splits are possible and often awarded in a property division.

In some circumstances, it is possible to complete a superannuation split. This means you can apply to the super fund trustee and arrange for funds to be transferred from your spouse’s super fund to yours. 

However, this is a very technical process. Certain steps must be followed including procedural fairness to the superfund trustee and the correct wording in any orders or agreements. It’s best to work with a Family Law expert to ensure you get it all right.

MYTH: I can’t leave my marriage because everything is in my spouse’s name. And I can’t afford to live without my spouse’s income.

TRUTH: You may be entitled to spousal payments (called spousal maintenance) from your former spouse. 

In order to qualify for spousal maintenance, you will have to prove that you have a need for the support and that your former spouse can pay. Spousal maintenance must be set out in a legal agreement and approved by the courts under Section 87 of the Family Law Act 1975 (Cth). Because of the complex nature of this element of Family Law, it’s best to get the help of an expert Family Law specialist as soon as possible.

MYTH: I have a family business, so my former spouse won’t be able to touch that if we divorce.

TRUTH: Assets held in a company or trust are NOT excluded from a property settlement claim.

If you have control of, or an interest in, a company or trust, then those assets will be included as part of the property pool if you divorce. This can get complicated where third parties (other shareholders or owners of a company) are involved. But, in those circumstances, often the assets of the company or trust will be considered a ‘financial resource’ and make their way into the property pool in that manner.

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MYTH: My partner cheated on me. Because of that, I’ll get more out of a divorce. 

TRUTH: In Australia, we have a no-fault Family Law system, which means there is no penalty for so-called ‘bad behaviour’.

The only reason that ‘bad behaviour’ will be considered is if the former spouse has been financially reckless or wasteful. This might be gambling or having an excessively costly lifestyle. Family violence will also be considered.

MYTH: My kids are 14, so they can choose to live with me when I separate from my spouse.

TRUTH: The courts can make orders about custodial arrangements until children are 18 years old.

There’s no fixed age when a child is able to choose where they want to live or if they want to spend time with a parent. Practically, however, courts recognise that teens are less likely to cooperate with orders they don’t agree with. So they will take this into account (along with all the other factors they consider) when making custodial orders.

MYTH: You must ‘legally separate’ before you can get a divorce.

TRUTH: There’s no requirement to ‘legally separate’ in Australia.

‘Legal separation’ is not an Australian concept. In Australia, in order to separate, you just need to tell the other partner that you wish to separate and then act on that intention. Sometimes this may mean moving out, and sometimes it may just mean moving into separate bedrooms. It is important to record the details and dates of your separation, as sometimes disputes around when this actually occurred can come up.

Go to an Expert for the Best Family Law Information

When it comes to getting the best Family Law information for you and your situation, it’s always best to go to the source (expert Family Law lawyers like Patrick Dawson Law!). While your family and friends will have the best of intentions, attempting to separate based on Family Law stories, anecdotes and myths will just end up getting you into trouble. And it certainly won’t ensure you get the best outcome.

Only an expert will be able to clear up misconceptions and help you navigate the separation process with ease. And they’ll ensure you get the best outcome for your situation.

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*Disclaimer*

The information contained in this article is for general guidance and information purposes only and should not be used as a substitute for consultation with professional legal advisers.