The legal system of Australia is a rather complicated realm, and navigating its labyrinthine tapestry is impossible without professional guidance and certainly not without absolute clarity. To complicate things further, there are a number of myths doing their rounds, especially about family law and its provisions. From custody battles to property settlements, there are a number of misconceptions that have been clouding the understanding of these laws among the public.


Here, we attempt to clear all your misbeliefs and help you understand your legal rights that you may have remained unaware of in family law matters. Here are 15 of the most common myths about Family Law:


<Myth 1> Upon separation, assets are automatically split equally between partners.

There is no rule that mandates an equal split of assets between partners when they decide to separate. Either married couple or an unmarried or de facto couple, the parties may come to an agreement on the division of assets. If the Court intervenes, it will consider factors like the financial and non-financial contributions made by each party in acquiring the assets or otherwise, the contributions made by each party as a homemaker, and the future requirements of both partners.


<Myth 2> Divorce is a prerequisite for initiating a property settlement.

This myth is quite common, especially because most people assume that there has to be some instigating factor to initiate a property settlement process. However, most lawyers recommend initiating the property settlement process before you get divorced. Once the divorce is final, there is a deadline of 12 months to start your property settlement, so it is better to start as early as possible.


<Myth 3> The act of signing a statutory declaration during property division ensures its legal validity.

A statutory declaration is not legally binding and cannot be enforced on either party in any form. To make your property settlement legally valid, you will have to obtain a Consent Order or enter into a Binding Financial Agreement.


<Myth 4> Equal custody arrangements (50/50) are guaranteed in family law cases.

While deciding custody arrangements, the court primarily considers the child’s best interests. It should also be noted that while parents might be given equal parental responsibility of their children, they cannot claim equal custody or equal time-sharing with the child.


<Myth 5> Visitation rights typically mean seeing children only every other weekend and during half of school holidays.

Every family is different, and so are the needs of their children. As already stated, custody and visitation rights are decided on a case-by-case basis, keeping the child’s best interests in mind. The Family Law Act has a set of criteria to decide on visitation rights, and the objective is to involve both parents equally in the child’s daily routine if that is what is best for the child.


<Myth 6> Infidelity by one partner leads to a larger share of assets in the property settlement.

Family Law in Australia is a ‘no-fault’ system, which means that it is not mandatory to prove who is at fault. For a divorce to be finalised, it is enough to prove that the relationship is irrevocably broken and there is no future for the partners together. In deciding the share of property, factors such as infidelity play no role whatsoever.


<Myth 7> Post-divorce, financial support is mandatory for one partner to provide to the other.

Whether or not to pay spousal maintenance or financial support to the other partner largely depends on the ability of the partners to earn an income, their ages, and their financial capacities. The Court will also consider the needs of the financially weaker partner and the ability of the financially stronger partner to provide for these needs. In short, to assume that one partner must provide financial support to the other is wrong. It is just a myth.


<Myth 8> Child support obligations are exclusively enforced on fathers by mothers.

Child support obligations are decided on various factors, and the gender of the parent is certainly not one of them. While it is common for people to assume that fathers are exclusively responsible for child support, the law considers other factors like whether each parent is able to earn an adequate income, the financial resources of each parent, and their caring responsibilities.


<Myth 9> Family and domestic violence encompasses only physical forms of abuse.

This is a huge misconception, as abuse can take various forms, and some of them may be more damaging than physical abuse. Verbal, emotional, sexual, social, psychological, cultural, financial, and even coercive control are the various ways in which a partner can abuse the other, and all of them come under family and domestic violence.


<Myth 10> Property settlements always result in a 50-50 split between partners.

A 50-50 split between separating partners is never a rule. All kinds of settlements and agreements are decided upon based on several factors, like the length of the relationship, the ages and health conditions of the partners, dependent children, the current and future needs of each partner, and all kinds of direct, indirect, financial, and non-financial contributions each partner has made to the relationship.


<Myth 11> Legal professionals offer minimal assistance in family law matters.

It is true that our legal system and the Family Law Act are designed to allow families to resolve their matters themselves with minimal court intervention. However, to understand the laws and legal rights of the involved parties, they need professional guidance. Furthermore, a lawyer offers an impartial, uninhibited point of view that may bring clarity to your understanding of the case.


<Myth 12> Financial contributions carry more weight than caregiving responsibilities in the property division.

In all matters pertaining to property settlements, there are several factors, some direct and some indirect, that will be considered by the Court. In such cases, it is a gross misconception that financial contributions carry more weight than caregiving while deciding on property settlements. A Court considers financial and caregiving factors equally, like the maintenance of the house, the care of the children that were born in the relationship, uncompensated contributions to the family business, etc.


<Myth 13> Custody arrangements overwhelmingly favour mothers over fathers.

This is untrue. Whenever it comes to deciding about the child of a separating couple, the Court considers several factors only to make sure that the decision upholds the best interests of the child. Maintaining a meaningful relationship with both parents has always been a priority, but only if it works in favour of the child’s best interests.


<Myth 14> Unmarried couples or de facto partners have no legal rights or protections in family law matters.

Under the Family Act, the legal rights of the partners are similar, irrespective of whether they are a married couple, a de facto couple, or an unmarried one. In all matters, from property settlement to child custody, all kinds of couples have unequivocally distinct legal rights and protections.


<Myth 15> Legal protections in family law are reserved solely for married couples.

Under the Family Law, different types of relationships are recognised. Besides married couples, the law recognises de facto relationships based on the length of time they have lived together or have been in a relationship. The law also recognises close personal relationships wherein the partners have been living together and one of them has been providing free care and domestic support to the other. All these kinds of relationships entail certain rights for every partner involved.


To get more clarity on how these laws would be applicable in your unique case, contact our family lawyers.