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Common Misconceptions of Family Law

Mullane & Lindsay Solicitors
Mullane & Lindsay Solicitors
Common Misconceptions of Family Law

In the following podcast Special Counsel, Catherine William discusses the common misconceptions of family law.

Catherine: “Hi, my name is Catherine Williams. I’m an accredited specialist in Family Law and I work for Mullane and Lindsay Solicitors in Newcastle and we also have a Tea Gardens office.”

Lorraine: “Catherine, is marriage more important than a de facto relationship?”

Catherine: “Marriage is a more formal type of relationship but for Family Law, it’s not really considered more important. Marriage is obviously something that comes about after people go to a ceremony where a de facto relationship is a more informal type of relationship in as much as it comes about after people have lived together for more then 2 years or where they’ve had a child together or perhaps they own property together or one of them has made what’s called a substantial contribution to the financial contribution to the assets of their partner so the main way that marriage and de facto relationships are considered different in Family Law is when it comes to property settlement. But since about 2009 they’re actually not treated as differently at all so as long as you’ve been in that relationship for more then 2 years or there are those substantial financial contributions or a child, it is considered very much the same as a marriage”

Lorraine: “Is property automatically divided 50/50 when a relationship breaks down?”

Catherine: “No, it’s not. There’s no automatic presumption that your assets will be divided equally if you break up. The questions are always a matter of what contributions each of the parties, the husband and wife or de facto husband and wife have made toward the acquisition and the conservation and improvement of those assets during that relationship and perhaps even after they’ve separated. So it’s a question of what financial and non-financial contributions have each made for those assets and none financial contributions might include renovations or other sorts of investments that don’t directly relate to money but improve or cause assets to be acquired but the contributions also have to take into account home making role of one or both of the parties and a parenting role. So it’s the whole picture of those contributions and how they can then just be equity divided between that couple once they’ve broken up but that’s not all that’s considered, we’d also need to look at what they each need for the future, so that might be whether one of them has an illness or whether one of them has a much lower or higher income than the other of whether one of them has received an inheritance or been gifted money or some other win fall particularly later in their marriage but overall, it is quite common that people divide their assets equally because they consider it to be fair perhaps because of the length of their relationship or because they both accept that they both worked really hard to get them where they are. There is some family law authority to support the idea that assets should be divided equally particularly after a very long relationship but its not an automatic presumption.”

Lorraine: “Is it easy to get a prenuptial agreement?”

Catherine: “It’s actually not very easy. In Australia, there is a system for what’s commonly referred to as a prenuptial agreement but they’re actually quite hard to get. So in Australia they’re called a financial agreement and a financial agreement can be entered into before a relationship begins, it could be before a de facto relationship, it could be before a marriage and that’s the thing that prenuptial aspect of those type of agreements, they can also be used during a relationship in the event that people are thinking what happens when we break up and after a separation they’re also often used as well. They’re quite a complex document in that they’re like a contract that the parties to the relationship are looking to enter into that covers their entire future, especially if this is the beginning of their relationship so it’s like doing a property settlement after you’ve broken up but before you’ve even started out together so there’s got to be full disclosure of financial circumstances, there’s got to be a very clear agreement about what each of them will get if they break up and there’s very strict legal rules about how that agreement has to be entered into and has to be signed so both of the people signing into the agreement have to have independent legal advice about the advantages and the disadvantages of the agreement and these agreements are at risk of being overturned if that advice hasn’t been properly given or where they have been coerced or induced in some way to the agreement and it wasn’t quite voluntary. So, they are quite complicated but these financial agreements are the best protection that people can have for the end of their relationship at the beginning of their relationship.”

Lorraine: “Can you get full custody of your children?”

Catherine: “Full custody is a term that I hear a lot as a family lawyer, people often ask if I can get full custody or will I get full custody but that’s not terminology that’s used in the family law in Australia anymore, it’s been quote some time since those terms were used but they’re still quite freely used in the community. What the family law talks about these days is where a child will live and how much time they’ll spend with their other parent. The live with and spending time with discussion normally and the question that has to be asked is what’s in the best interest of that child for their circumstance. So a court order made by a judge whether that’s after a long court case or by agreement somewhere along the line that a child doesn’t spend any time with one of their parents is quite rare and it’s a very hard decision for a judge to have to make because the family law in Australia makes it quite clear that each child has the right to know and be cared for by both of their parents as long as they’re safe in that relationship and not being exposed to violence or risks of various forms so its quite unusual for a child not to see a parent at all and full custody is very unusual. If that kind of argument has to be run in a court case there’s multiple days in court, it can very, very expensive, there would need to be expert evidence given by social workers or psychologists about the impacts on that child of not seeing that parent, so it really comes down to what are the risks to that child of having a relationship with that parent versus the risk of not having a relationship be. So were still looking over what’s best for a child.”

Lorraine: “Catherine, the last question here, do children automatically spend an equal amount of time with each parent after separation? Do you think you answered part of that?”

Catherine: “Yeah, I guess I have. It is a question of what’s best for kids, what’s in their best interest after their mum and dad break up and look the equal time question is a little bit more complicated in that where mum and dad, once they’ve broken up, agree to have equal share responsibility for their kid and that they’re agreeing that the biggest decisions we’ll make together, where will the kid go to school, will they have a religious education or have a particular religion, will they be known by a certain name, what medical treatment will they have, where mum and dad agree what decisions they make together then the family law says where mum and dad can’t agree, the court has to consider whether there should be equal time between the parents, so there’s a requirement to consider but its not an obligation on a court to impose it on mums and dads. People do like having an equal time arrangement whether that’s a week with mum and a week with dad or something along those lines because in our busy lives it works for them and it works for the children but its not for everyone, there needs to be a lot of free communication between parents to make it work and the children need to be able to manage the change in household. It is a big deal for a child to move all of their things from one house to the other week to week. So some parents really think that equal time works best for them and it can be a very effective parenting arrangement for lots of families but other families don’t find it such a great idea, it can be quite disruptive and if the mum and dad don’t get along so well it can be very difficult to manage equal time arrangement. Where mums and dads can’t agree, it becomes a matter for the court to decide and it does absolutely come back to what I was saying before about what’s best for children, wants in their best interests and how does it actually impact on them and that’s the whole point of family law is protecting children and making sure that their best interests are the paramount consideration.”

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