Mia Eddy, Paralegal at Orbell Family Lawyers, sheds some light on some of the most common family law myths to provide clarity and empower you to make well-informed decisions.

1. “Children get to choose who they live with”

It’s a common misconception that children get to decide where they live at a certain age.

In reality, the Family Law Courts prioritise what’s in the child’s best interests. While a child’s views are taken into account, they are considered alongside many other factors, and their safety and meaningful relationships with both parents are the primary considerations.

Courts carefully weigh each case, ensuring decisions are made logically and in the child’s best interests, not just based on their preferences. We encourage families to resolve parenting disputes outside of the Court process where it is safe to do so.  

2. “My ex-partner did the wrong thing, so I will get more of our assets”

Wondering if your ex’s bad behaviour will affect your property settlement? In Australia, you don’t need to prove ‘fault’ to get a divorce or divide up your property. To get a divorce the only requirement is being separated for 12 months. This no-fault system simplifies the divorce and property settlement process, making it quicker and less adversarial.

Several factors determine who gets what in a property settlement. These include the financial contributions of both parties, non-financial contributions (like homemaking or caring for children), the future needs of each party, and the overall fairness of the settlement.

While fault doesn’t affect the divorce or property settlement itself, issues like mental health, substance abuse, or family violence can be important to consider when determining parenting arrangements or a property settlement. The focus is on creating safe, fair outcomes without assigning blame.

3. “I need to take my ex to Court”

It is a common misconception that taking your ex to Court is the only way to achieve a final outcome.

Family Law encourages separating couples to explore alternative dispute resolution methods such as mediation or negotiation before starting a Court case. In parenting matters, unless there are safety concerns or other exceptions, you are required to attempt mediation before you are able to make an application to the Court. Alternative dispute resolution allows parents more control over the outcomes and can result in more flexible solutions tailored to the specific needs of parents and their children.

The majority of family law matters settle outside of Court, reducing costs, saving time and minimising further conflict and stress. Court is typically a last resort, when other methods fail or in cases of urgency, family violence or significant conflict.

4. “I’m not seeing my children, so I don’t need to pay child support”

Child support and parenting arrangements are separate legal matters. Even if one parent is not spending time with their child, the obligation to pay child support remains. Similarly, a parent cannot withhold access to a child if the other parent is not paying or is behind with child support payments.

If a parent refuses to pay child support as a way to protest reduced or denied access to their children, they could face serious consequences, including debt collection measures, garnishment of wages, and in some cases, not be able to leave Australia.

Withholding child support can also damage trust and cooperation between co-parents, potentially leading to a more strained relationship and negatively affecting the children. It’s essential to address these issues with the children’s best interests in mind.

5. “If we’ve separated for more than a year, the divorce is automatic”

The process of divorce is not automatic, even after the required 12 months of separation. While it may seem like the dissolution of a marriage should automatically follow a year of living apart, there are still legal steps and requirements that must be fulfilled for a divorce to be granted.

Even after the Divorce Application is made and approved, a divorce Order will only become final one month and one day after it’s granted by the Court.

How We Can Help

Understanding the complexities of separation and family law can be tricky, but it’s important for couples going through a separation to focus on achieving fair and practical outcomes. By clearing up common misunderstandings and focusing on working together, we can make the process smoother, reduce conflict, and find solutions that work for everyone.

If you need legal guidance and assistance navigating your family law matter, please contact us.

Mention this article when you call to receive a free 15-minute discovery call with one of our experienced family law solicitors.

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The information contained in this article is provided for information purposes only and should not be construed as legal advice.