Top Myths About Divorce — Debunked by Family Law Experts
Divorce is often accompanied by a wave of emotions, confusion, and uncertainty. Amidst the turmoil, myths about divorce circulate widely, making the process seem more daunting than it is. In Australia, these misconceptions can lead to misunderstandings about the legal system, financial arrangements, and parenting responsibilities. In this article, we debunk some of the most common myths about divorce in Australia to provide clarity and peace of mind.
Divorce Means an Automatic 50/50 Split of Assets
One of the most pervasive myths about divorce is that assets are split equally between both parties. However, Australian Family Law doesn't prescribe an automatic 50/50 division of property.
The Truth: The division of assets depends on various factors, including:
The financial contributions of each party
Non-financial contributions, such as homemaking and child-rearing
The future needs of each party, including age, health, and earning capacity
The court aims for a fair and equitable outcome, which may not necessarily mean a 50/50 split.
Expert Tip: It's crucial to seek advice from a Family Law expert to understand your rights and ensure a fair property settlement.
You Must Prove Fault to Get a Divorce
Many people believe that they need to prove infidelity, abuse, or other wrongdoing to get a divorce in Australia.
The Truth: Australia follows a "no-fault" divorce system. The only requirement is to prove that the marriage has irretrievably broken down, evidenced by 12 months of separation. The court isn't interested in assigning blame or investigating the reasons for the breakdown.
Expert Tip: Focus on meeting the separation requirements rather than gathering evidence of wrongdoing.
Mothers Always Get Custody of the Children
There is a common belief that mothers have an automatic right to custody of the children after a divorce.
The Truth: Australian Family Law prioritises the best interests of the child. The court encourages both parents to have an ongoing relationship with their children, provided it is safe and in the child's best interests.
Key Considerations:
The financial contributions of each party
The ability of each parent to provide for the child’s needs
The child’s wishes (depending on their age and maturity)
The court aims for shared parental responsibility unless there are safety concerns.
Expert Tip: Both parents should be prepared to demonstrate their commitment to the child's wellbeing and their ability to provide a safe and stable environment.
The Family Court only becomes involved when there are disputes that cannot be resolved through alternative means.
Expert Tip: Engage a Family Law lawyer early to explore mediation options and avoid costly court proceedings.
Divorce and Property Settlements Are the Same Thing
Some people believe that obtaining a divorce automatically resolves property settlement issues.
The Truth: Divorce and property settlements are separate legal processes. Divorce simply ends the legal marriage, while property settlement deals with the division of assets and liabilities.
Key Points to Remember:
Property settlements must be finalised within 12 months of the divorce being granted
Failing to finalise property settlements can lead to future legal disputes
Expert Tip: Don’t assume that divorce finalises financial matters. Address property settlements separately with the help of a lawyer.
Child Support Ends When the Child Turns 18
There is a widespread misconception that child support obligations automatically end when a child turns 18.
The Truth: In some cases, child support may continue beyond the age of 18. For example:
If the child is still in full-time education
If the child has a disability or functional needs
In such cases, a court order for adult child maintenance may be required.
Expert Tip: Consult a Family Law lawyer to understand your ongoing responsibilities regarding child support.
You Don’t Need a Lawyer for a Divorce
Some believe that handling a divorce without legal representation can save money.
Expert Tip: Engaging a Family Law expert ensures that your rights are protected and that the process runs smoothly.
Only Married Couples Need to Worry About Family Law
There is a misconception that Family Law only applies to married couples.
The Truth: Family Law in Australia also applies to de facto relationships. Couples who have lived together for at least two years, or have a child together, may need to address property settlements and parenting arrangements under Family Law.
Expert Tip: If you are in a de facto relationship, seek legal advice to understand your rights and obligations.
Pre-Nuptial Agreements Aren’t Enforceable in Australia
The Truth: BFAs are legally recognised in Australia, provided they meet specific legal requirements. These agreements can cover:
Property division
Spousal maintenance
Superannuation splits
However, they must be drafted correctly and meet the necessary legal standards to be enforceable.
Expert Tip: Work with a Family Law lawyer to ensure your BFA is valid and enforceable.
You Can Hide Assets During a Divorce
Some believe they can hide assets to avoid sharing them during a property settlement.
The Truth: Attempting to hide assets is illegal and can have serious consequences. The court requires full financial disclosure from both parties. Failure to disclose assets can result in penalties and unfavourable outcomes.
Expert Tip: Be honest and transparent about your financial situation to ensure a fair and equitable property settlement.
At New South Lawyers, we debunk legal myths and provide clear, practical advice tailored to your unique situation. Our Family Law experts are ready to guide you through the complexities of divorce, ensuring your rights are protected and misconceptions are clarified
