Divorce and separation are challenging enough without the confusion caused by myths and misinformation. As family lawyers, we regularly hear the same misconceptions from clients and many of them can lead to costly mistakes or unnecessary stress.
In this article, we breakdown some of the most common myths about divorce and separation in Australia and share the facts you need to know to make informed decisions.
Myth 1 – Divorce and property settlement are the same thing
In Australia, divorce and property settlement are two separate processes.
- Divorce legally ends a marriage and can only be applied for after 12 months of separation.
- Property settlement deals with the division of assets, liabilities and financial resources between the parties, whether they were married or in a de facto relationship.
You do not need to wait 12 months to formalise property settlement, as that can be done prior to being divorced. However, once you have been divorced, you only have 12 months to finalise property settlement through Court if needed.
Myth 2 – Everything gets split 50/50
There is no automatic “50/50” rule in Australian family law. The Court uses a four-step process to determine what is considered “just and equitable”.
- Identify the property pool (all assets, liabilities and superannuation of both parties, whether held jointly or solely).
- Assess each party’s financial and non-financial contributions.
- Consider future needs (e.g. age, health, care of children, earning capacity).
- Consider what is a just and equitable division.
Every case is different.
Myth 3 – The Mother always gets the kids
The paramount consideration when the Court is determining a parenting matter is the best interests of the child. Every case is different, and many factors are taken into consideration when the Court determines what is in the best interest of a child. What may be suitable for one family, may not be suitable for a different family.
Myth 4 – We have agreed on everything and don’t need legal help
Even if you and your ex-partner have agreed on parenting or property arrangements, it is still important to get independent legal advice. This is for a number of reasons, including:
- Verbal or informal arrangements are not legally binding.
- Without formally finalising a property settlement agreement, either party could seek a higher property settlement later and future assets are not protected.
- A lawyer can identify issues you may have missed (like potential tax implications, superannuation splitting or risks).
Myth 5 – You can’t separate if you are still living together
It is possible for you to be “separated under one roof”. If considering divorce or property settlement proceedings, you will need to prove:
- The relationship has ended.
- You have stopped living as a couple (e.g. no longer sharing meals, beds and social activities).
- There has been a change in household and emotional dynamics.
Myth 6 – Only married couples have legal rights after separation
De facto couples in Australia have similar rights and responsibilities to married couples under the Family Law Act 1975.
A number of circumstances are taking into consideration when working out if you are in a de facto relationship, including the duration of the relationship (generally over two years), whether you reside together, how each party has contributed towards the relationship (financial and non-financial), or whether you have a child together.
It is important to know what you only have two years from the date of separation to commence de facto property settlement proceedings in the Court.
Wrap Up
Do not rely on Google or gossip.
Whilst family and friends mean well, they most likely are not up to date with the current family law case law and legislation. Every case is different, and you should get independent legal advice to ensure your interests are protected.