Separation & Defacto - Myths & Facts

Monday 19 May 2008

Separation is normally one of the most difficult stages in a persons life.  As well as dealing with the grief of the marital breakdown, many people struggle to make sense of the barrage of information and opinions relating to separation and divorce.

At Richard Calley Family Lawyers, we're here to bust the myths associated with separation and divorce, and ensure that our clients are fully armed with the information they need to move forward with confidence towards a settlement of children's and property matters.

MYTH:  "The Family Court always orders that the children live with the mother"

FACT:  On 1 July 2006, the Government introduced changes to family law.  The changes make it clear that both parents should be equally responsible for the care and welfare of their children until they turn 18.  Although equal shared responsibility for the children is different to equal shared time, many have interpreted this as suggesting that children should have contact with both of their parents on an equal basis, unless it is genuinely in the children's best interests not to do so.  The changes make it clear that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

MYTH:  "If I leave the matrimonial home, I forfeit my rights to the home in settlement"

FACT:  Pursuant to the Family Law Act, all assets owned by the parties to the marriage constitute matrimonial property and make up the asset pool that is to be divided.  This includes the matrimonial home.  However, there are tactical benefits to staying put in the matrimonial home as the party who stays in the home can normally negotiate from a position of security and stability.  It is always advisable to see a solicitor prior to separation to discuss the various options available.

MYTH:  "We can't make arrangements to split the assets until we get divorced"

FACT:  Property applications may be issued any time up until one year after the date of your divorce.  After that time you would need to make an application to the Family Court to seek a property settlement out of time.  Sometimes the property settlement process takes time, and as such it is normally preferable to divide property prior to applying for a divorce.

MYTH:  "A divorce is automatic after one year separation"

FACT:  In order to get divorced, an Application for Divorce must be filed by one party solely or both parties jointly.  Before a divorce will be granted, a Court must be satisfied that you have lived separately and apart for at least twelve months and that there is no reasonable likelihood of resuming married life.  If there are children under the age of 18, the Court must also be satisfied that proper arrangements have been made for the care of them.  You may prepare your own divorce application, or ask a solicitor to do it for you.