If you are separating from your spouse or partner, talk to Tierney Law. Our lawyers take the time to understand what is important to you during what will likely be a trying and emotional time. We have integrity and will work with you towards reaching a practical resolution with your former spouse or partner through negotiations or family dispute resolution. Our lawyers are also able to represent you in Court if your matter is unable to be resolved.
Our lawyers have a working knowledge of many areas of law including property and contracts, corporations and businesses, trusts and superannuation funds which they all apply to their Family Law practice.
Our Family Law team has particular focus on:
- Matrimonial and De Facto property settlements;
- Financial Agreements before, during or after your relationship;
- Spousal Maintenance;
- Parenting matters; and
- Injunctions, restraining orders and family violence orders.
We deliver a high quality, affordable and personalised Family and relationship law service.
There are many misconceptions when it comes to Family Law. Here are some common examples:
Myth 1 – Divorce is the first step
Parties need to be separated for 12 months before they are able to apply for a divorce. Therefore the property settlement process will usually commence, and be finalised, well before the divorce. We encourage our clients to commence the property settlement process as soon as possible to remove the uncertainty surrounding their financial future. We also often find that financial settlement will enable clients to move on with their lives financially as well as emotionally.
Once you have divorced there is a time limit within which you have to start Court proceedings for property orders, if you and your former partner cannot reach agreement.
Myth 2 – Property will always be split 50/50
This is one of the most common misunderstandings and it is not true.
We as lawyers follow the same “four step process” that the Courts have adopted to determine property settlement matters and give you advice:
Step 1 – Identify the assets and liabilities of the parties, including superannuation. It does not matter whose name property may be held.
Step 2 – Assess the contributions made by each party to the assets available for division and to determine whether an adjustment should be made in either party’s favour for their contributions. Contributions include financial contributions (eg who paid for property), non-financial contributions (eg did either party apply their labour to improve the property) and contributions as a parent and homemaker (eg who cooked meals, washed the dishes, did the laundry etc).
Step 3 – Assess the future needs of the parties (eg whether the income earning capacity of one party (or both) is affected by health or having primary care of children) and again to determine whether those needs justify an adjustment in either party’s favour.
Step 4 – Assess whether the proposed outcome of the first 3 steps is just and equitable. For example, in some cases a proposed outcome may result in one party receiving all of the parties’ combined non-superannuation assets and the other party all of the superannuation assets. This may not be just and equitable if the party retaining the superannuation is unable to access them for a significant period of time.
If you have reached agreement with your former partner you should obtain advice about whether the agreement is fair. Only then can you be sure that you are making a decision that is in your best financial interests.
Myth 3 – Family Law favours women
Family law does not base decisions on gender. A settlement is determined on the basis of particular facts. This myth is present in two main areas of family law: property settlement and parenting arrangements.
In property settlements the Courts will look at the future needs of each parties. It is not uncommon for one party in the relationship to have been the primary breadwinner and for the other to have been the primary homemaker and carer of the children. It might be in this situation that the person who has been the homemaker and carer of the children has given up working opportunities have suffered as a result. This could lead to a greater adjustment of property in that person’s favour to create financial equality in each household. This method would apply however whether or not the party who was the homemaker and carer of the children was a male or female.
The future needs are only one factor that is considered in property division and needs to be weighed against the other factors mentioned above.
Situations involving children are complicated. The primary consideration in determining care arrangements is the best interests of the children. Family law does not presume that the mother should be the primary carer of the children in fact the children have a legal right to a meaningful relationship with both parents Care arrangements are determined by having regard to the particular circumstances of each case including the ages of the children and the care arrangements that were in place prior to separation. Each family circumstance is different and specialist advice should be obtained about your particular situation when negotiating the future care arrangements for the children.
Myth 4 – Its in my name so I own it
It is not relevant for Family Law purposes whose name the asset is in or who has possession of the asset. For example, one party leaving the matrimonial home does not mean that the asset will be treated any differently in negotiating a property settlement. Similarly just because a car, bank account or investment property is in the name of one partner does not meant that they are automatically entitled to that asset.
Myth 5 – Property settlements always have to go to Court
This is one of the biggest myths and it is not true. Court is the last resort and is there if needed. We encourage our clients to attempt to come to an agreement about the division of property prior to considering Court action. Agreements can be reached either though the parties negotiating directly, through the parties negotiating through their lawyers in writing or through mediation – or a combination of these. If agreement is reached it is important that the agreement is recorded in writing and formalised by Consent Orders or a Binding Financial Agreement. If the agreement is not formalised then the other party might have grounds to claim a different division of property.
It is not possible to apply a one size fits all approach to Family Law and the above is not intended to replace legal advice. Each matter will be determined based on that particular set of facts. It is therefore important for you to obtain specialist legal advice about your particular circumstances as time limits may apply in some circumstances.
For more information, talk to Tierney Law’s Family Law Team.