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COMMON MISCONCEPTIONS OF FAMILY LAW

Wed, 15 Mar 2017

COMMON MISCONCEPTIONS OF FAMILY LAW

ASSUMPTION — IT WILL BE A 50/50 SPLIT

Most people presume that their assets will be split straight down the middle, however there is no hard and fast rule that this will occur (see pages 12 to 13 for more details).

 

ASSUMPTION — What I put in, I get back

A person may not necessarily get to keep all of the things that they brought into or acquired during the relationship. The Court will consider each parties contribution to the relationship and what their future needs are (see pages 12 to 13 for more details).

 

ASSUMPTION — IF I OWN IT, I KEEP IT

The property of both parties, whether owned individually or jointly, is   regarded as property of the relationship. Whether it be real estate, bank accounts or motor vehicles.

 

If one party is in possession of, for example, the matrimonial home, this does not guarantee that they will retain possession following finalisation of the property settlement.

 

ASSUMPTION — Unfaithfulness = left with nothing

There is a ‘no fault’ jurisdiction in Australia. The question of morality or infidelity will have no impact on how the assets are to be divided and will not determine who the children are to remain with.

 

ASSUMPTION — COMPANIES AND TRUSTS ARE OUT OF BOUNDS

The term ‘property’ covers a wide range of assets and whether trusts and companies are ‘property’ has been long debated. More commonly, they are defined as property, and do become part of the property pool.

 

Further, a party does not need to be a trustee of the trust or a director of the company. They merely need to have ‘control’ over the trust or company for the Court to have the power to deal with that asset.

 

 ASSUMPTION – To Court we go

It is not necessary to finalise every matter at Court. This is only a last resort. Clients are encouraged to try and reach an agreement in the first instance (see pages 8 to 9 for more details).

 

ASSUMPTION — I’m a male—I’m doomed!

When dividing the property pool between the parties, the Courts, as a final step, will determine each parties future needs and earning capacity. Therefore, if the female spouse was primarily responsible for raising the children and staying at home, and the male spouse was the breadwinner, the female would most likely have a greater future need due to her lack of workplace skills and development.

 

This is probably where the misconception arises that the “female gets everything”. However, it is a changing world, where typical gender roles are being reversed, and as such nowadays in some cases it is the male spouse who receives the greater division of the property!

 

ASSUMPTION — A solicitor is not required if everybody agrees

If an agreement can be reached between the parties, the agreement should be documented in either a Binding Financial Agreement or by Consent Orders. This is to safe guard both parties should the other change their mind down the track. There are also benefits such as Capital Gains Tax exemptions and/or stamp duty exemptions for property transfers. 

 

ASSUMPTION — DIVORCE AND A PROPERTY SETTLEMENT ARE ONE IN THE SAME THING

Parties do not have to be divorced in order to divide the assets between them. In most cases, the property settlement comes first, as parties have to wait 12 months after separation before applying for a divorce (see pages 10 to 11 for more details).

 

Affinity Lawyers have experienced and professional legal team in place to assist you with discussing your options and getting your Family Law matter in order, so contact our office on 5563 8970 or visit us at suite 3 / 385 Oxley Drive Runaway Bay, Gold Coast to arrange an appointment today.

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