Frequently Asked Questions

Understandably, Family Law matters are unfamiliar territory for most people. Unfortunately, this steep learning curve typically comes during a very emotionally difficult period, a lot of the common myths and misconceptions surrounding Family Law can make things far more scary and overwhelming than they have to be. 

We’ve listed below a handful of common questions surrounding Family Law matters.

How long do I have to wait to apply for a Divorce?

Far far away, behind the word Mountains far from the countries Vokalia and Consonantia, there live the blind texts. Separated they live in Bookmark

My partner says they're going to 'Take me to the Cleaners' - is that possible?

Not if you seek professional advice! The Family Law Act is designed to deliver a fair outcome for all parties, it's simply untrue that one party is able to take an enormous percentage of a property pool.

Courts will automatically assume we will have “joint custody” of our children

When parents separate, there is no right or wrong when it comes to deciding on the future parenting arrangements for children. What works for your friend might not work for you.

Most people typically have a perception that “joint custody” means spending equal time with your children. In Australia, the term “custody” has been phased out and as such, it is not a term that is regularly used by those working in the modern family law arena.

Instead, we use terminology such as “parental responsibility”, which describes a parent’s ability to make major decisions about their children’s long-term care, welfare and development. Rather than “custody”, we use expressions such as “live with” and/or “spend time with” to describe children’s living arrangements.

Just because you are now separated does not mean that you have to move straight away to a “week about” arrangement or similar equal time arrangement. It is about making sure your children’s best interests are met and that they feel comfortable and secure in their routine. If you are the primary caregiver of a very young child, chances are that your child will be distraught upon leaving your care for long periods of time. Of course, the older your child grows and develops, the easier he or she will be able to separate from you to spend time with the other parent.

I cannot leave my partner because I will be left without any financial support

This is not necessarily the case. In many relationships where the parties have young children, one person may be the primary income earner and the other may stay at home to be the children’s primary caregiver. This is especially common having regard to the enormous costs associated with childcare.

If you and your partner can agree amicably that you will be supported financially for a time being whilst the children are still young – that is great. But what do you do if your ex suddenly withdraws financial support and you are left with no means to buy groceries, pay bills and cover your other reasonable everyday expenses?

This is where an Application to the Court for spouse maintenance may be applicable to you. Spouse maintenance is a form of payment made by one person to the other for a certain period of time – usually until you can get back on your feet. This may also be applicable to you if you do not have children but for whatever reason, are unable to work and be gainfully employed. It is also important to remember that Spouse maintenance is different from Child Support payments.

Once in a marriage or de-facto relationship, is my partner immediately entitled to 50% of my assets?

Not at all. In Australia, there is an emphasis on initial contributions (what you each brought into the relationship) and contributions made during the relationship. For short relationships, these factors are given significant weight in a property division.

My partner is the one who chose to leave. Does this mean they get less?

In Australian Law, there is a 'No Fault' approach taken to relationship breakdowns. This means that the approach to Property or Children matters is the same, irrespective of the cause of the relationship breakdown. That being said, if there are other significant factors at play (eg Domestic Violence, Financial Waste, etc) then these are absolutely taken into account.

I want a fair resolution to my separation, but don't want to go to court. Is this possible?

Absolutely! Very few Family Law matters should actually end up in a court room. The vast majority can be settled well before court is even considered, whether it's amicably between parties or with the assistance of Solicitors to work out an agreement that both parties consent to.

Courts favour mothers having primary care of children

The presumption that a child will live with the mother after the breakdown of a relationship is one of the greatest misconceptions in our society. The legislation in family law is gender neutral and rightly so. These days, there is an increase in mothers returning to the work force soon after giving birth as they are the family’s primary income earner. Further, there are many different types of family units – including same sex relationships. As such, there is no “special treatment” that mothers get in the family law system. When it comes to the care of children, the children’s best interests remain the paramount consideration.

I ended the relationship, so I will have to move out

This is not necessarily the case. There could be many reasons why it makes sense for one partner to leave the family home rather than the other partner – for example, if children are involved, it makes sense that the children’s primary caregiver will remain in the home together with the children to provide them with stability during this difficult time, at least until more permanent arrangements are made, either by agreement or Court Orders.
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