Family law myths, busted


When it comes to family matters, well-meaning friends and family will be a rich source of advice – advice you probably should not rely on. Here we set the record straight on the top five pieces of advice given by bush-lawyers.

1. You can settle everything without Courts or lawyers

You don’t have to involve the Family Court to sort out your property; you don’t even have to have a lawyer. But be warned – if your agreement is not properly formalised:

  • either party can renege on the deal. The Court can overrule a private arrangement on the application of either party;
  • any real estate transfers are likely to attract State Government transfer duty at the usual ad valorem rates.

Once you reach an agreement with your partner it is vitally important that it be formalised either by way of Family Court consent orders or a Binding Financial Agreement (BFA). In order for a BFA to be legally binding, both parties and their lawyers must sign it. Consent orders require the imprimatur of the Court. We can advise you how to best formalise your agreement.

2. Divorce resolves property and parenting issues

Divorce refers only to the issue of a decree absolute. This decree ends a marriage. It does not resolve or change property issues significantly and it does not resolve parenting issues.

3. You need to wait twelve months to resolve property and parenting issues

Divorce is the only part of a family law matter that usually requires twelve months separation. Generally, property and parenting issues can and should be resolved as soon as practicable after separation.

4. One of you has to move out before you’re separated

Although it usually is, separation need not be physical. Generally, separation is taken to have occurred when one party has clearly communicated the end of the marriage to the other party. This can occur while both parties continue to reside in the same home (known as separation under one roof). It can also occur against the wishes of one party.

5. On separation, property must be divided 50/50

Although it’s a fair result in some situations, there is no presumption that the asset pool should be divided equally. Family laws require that each case be decided on its own merits. Visit – I’m separated, what are my property rights?

And finally: To get the best result you need a tough lawyer.

See – You don’t need an aggressive lawyer.



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