Dispelling Family Law Myths
As family lawyers, we have heard quite a few misleading notions about family law from various clients. For instance, people are often led to believe that family law is all about litigation, and the only way to succeed in your matter is by being litigious.
This is simply not the case.
In this article, we attempt to debunk some of the prevailing myths around law, specifically family law, and provide a clearer outline of factors about family law.
Myth #1 Take it to court.
It is commonly believed that all family law matters are settled in the courtroom. On the contrary, the focus in family law is placed on dispute resolution.
For all matters in family law such as custody issues and division of assets, the law requires involved parties to make a genuine effort to reach amicable agreements.
Even in cases where this is not possible, parties are required to take a collaborative approach in courtroom procedures.
This is mainly because in Australian family law, paramount consideration is given to the best interests of the child.
Myth #2 Mothers over fathers always.
Because of the way traditional societies were structured, even today many believe that mothers by default become the primary carers of the child after a divorce or separation.
While it is true that in older societies females were responsible for looking after the child, and males were the breadwinners of the family, our contemporary society is very different.
Today, women take on as many professional jobs as men. On the other hand, a lot of importance has been given to men’s roles as carers for their children.
Under the Family Law Act (1975) in Australia, women and men have equal responsibilities as parents. Therefore, there are no biases around who will have custody of the child following the breakdown of a marriage or de facto relationship.
Myth #3 It was his/her fault so I will receive more entitlements.
Depending on individual country’s legislation, the divorce system could either be fault based or no-fault based.
For example, Australia follows a no-fault divorce system. This means that if two parties have decided to get a divorce, they need not prove that the other party has committed fault like cheating.
Before this was introduced in 1975, a party was required to prove that the other party was “at fault” to have the divorce approved.
Therefore, during property settlement such discussions are irrelevant. Division of assets are done by determining factors such as financial and non-financial contributions.
Myth #4 Only breadwinners receive majority entitlements after property settlement.
As mentioned above, Courts need to determine the financial and non-financial contributions of parties before making property settlement orders.
Financial contributions include assets, income, superannuation funds, real estate property etc. Non-financial contributions include looking after the family home, looking after the children in the marriage, contributing to maintenance of the house etc.
Family Courts ensure that property orders are just and fair. Therefore, non-financial contributions are also given substantial weight during division of assets in family law cases.
Myth #5 Separation equals moving out of the house.
A party need not always have to move out of the house in order to “separate” from their former spouse. In other words, separation need not necessarily entail moving out of the house.
Some couples opt ‘separation under one roof’ for genuine reasons such as financial troubles, and convenience.
However, to proceed with divorce, parties will be required to prove that their relationship has broken down.
To prove breakdown of relationship for cases where separated parties were living under the same roof, each party will need to provide affidavits.
These affidavits will need to support claims that the relationship has broken down, and neither party intends to resume the relationship.
Therefore, in special circumstances, separation may not involve “moving out” of the house.
As we have explored in this article, there are many misconceptions that people have regarding family law matters. Yes, family law is supremely complicated. However, by believing such myths, people only stress themselves out more.
If you find yourselves in the midst of a family law matter, it is best to educate yourselves by reading more of such family law blogs.
People often feel disheartened because of some of the above-mentioned myths. It is always recommended to consult a family lawyer to gain a clear idea on your matter.
John Bui is the Principal Solicitor of JB Solicitors. The firm primarily deals with matters falling under family law, property law, criminal law and commercial law. John is a nationally accredited mediator and arbitrator.