You are sitting around with friends talking about your separation. As well as their support, they are offering advice based on what happened to someone they know… should you take that on board?
Probably not. In Family Law, each case is decided according to its facts and the specific situation of the family. Just because one case was decided a certain way doesn’t mean your case will be! It’s really important to get some good advice from an expert family lawyer instead of getting advice that could turn out to be complete (and common!) separation myths in family law.
The Top 7 Myths
In the meantime, here are some common beliefs you might have heard- proven or debunked by an expert family lawyer;
#1 – “I have a right to see my child.”
It is actually not the parent who has any rights, it is the right of the child to have a “meaningful relationship” with both parents, to the extent that fits with the child’s best interests.
#2 – “I pay child support so I should get to see my child”(or) “He/she doesn’t pay child support so why should they get to see the child.”
Whether or not a person provides financial support for a child, is but one of many considerations as to what is in a child’s best interests. The payment (or non-payment) of child support doesn’t determine what time should be spent with a child. However, the court will definitely look more favourably on a person who pays their child support.
#3 – “I have to wait 12 months before I can sort out my property settlement.”
You have to wait 12 months before you can apply for a Divorce; but otherwise you can – and should – start sorting out your property settlement as soon as you can after separation.
#4 – “He/She can’t touch my superannuation…can they?”
Yes, they can. Superannuation is an asset just like any other. Sometimes it is the biggest asset of the relationship. The court can and will make orders for it to be “split” (divided).
#5 – “I was the breadwinner so shouldn’t I get more than 50% of the property?”
When deciding a property case, the court looks at ALL the contributions made by both parties during the relationship – financial, and non -financial; and contributions of each party as homemaker and/or parent. The court makes it clear that the “homemaker” role is of equal importance to that of the breadwinner.
#6 – “If I am the one to leave the home, I will lose my entitlement.”
The person who leaves the home does not forgo their entitlement to a property settlement. What will be relevant are the financial and other contributions made by each party after separation.
#7 – “We are a defacto couple after 6 months.”
In order to access the family law system, the relationship needs to be of at least 2 years duration, but there are exceptions to that rule.
Read more from Collier Family Law HERE.