5 Family Law Myth Busters
Myth #1: Women get more in a property settlement
It’s a common misconception that women get a larger percentage of the property pool when it is split in a property settlement.
The Family Law Court takes the following 5 step approach in determining a just and equitable split of a property pool after separation:
- Is it just and equitable to alter the property interests of the parties?
- What is the current property pool? This includes all assets, liabilities, superannuation and financial resources that are individually or jointly owned, whether they were acquired before or during the relationship or since separation.
- What were the financial and non-financial contributions (both direct and indirect) of the parties to the property pool?
- The future needs of each party are assessed, this includes considering their age, health, income earning capacity, role as a primary carer.
- Is the overall division just and equitable in the circumstances?
As you’ve just read, the 5 step approach does not consider the gender of the parties and determining the division of a property pool is individual to each set of circumstances. Your family lawyer should explain this to you at the start of the process.
Myth #2: If I move out of the house, I will lose my entitlement to it
If a party moves out of a property that forms part of the property pool it does not impact their legal interest in the property or their entitlement in a property settlement. The 5 step approach mentioned above is followed to determine who is entitled to what in the split.
Myth #3: We are living under the one roof so we haven’t separated.
Parties can be separated but living under the one roof. Sometimes a couple may separate but remain living under one roof for days, weeks, months or years. Separation is constituted by a range of factors including:
- A change in sleeping arrangements;
- A reduction in shared activities or family outings;
- Performing fewer household duties for each other;
- A division of finances; and
- If you have notified family or friends of your separation.
Myth #4: We have 50/50 shared care of our children so neither of us will have to pay child support.
Child support is calculated by the Child Support Agency based on the income of both parents, the cost of raising a child and the care arrangements for the children. Therefore, an equal shared care parenting arrangement does not mean that there will be no child support payable because the income of the parties is also considered.
Myth #5: I’m entitled to 60% because my friend got 60% in their settlement.
Parties often expect they will receive a similar percentage to what a friend or relative of theirs received in their own property settlement. There is no absolute percentage division that can be applied to a couple as the equitable division of a property pool is based on the individual circumstances of each couple and their own property pool. You should seek legal advice from a family lawyer about your financial entitlements following a separation.