Family Lawyers: Some Myths About Separation and Divorce

Family Lawyers: Some Myths About Separation and Divorce

The processes of divorce, separation, and property division are seldom easy and can involve a great deal of conflict. To cope with these challenges, it is natural to turn to loved ones for comfort and assistance.

While loved ones can be a great sounding board, their knowledge of the family court system is often inaccurate and incomplete.

Family and friends who have gone through a divorce or property settlement may mean well when they provide advice based on their own experience, but it’s important to remember that no two divorces or property settlements are the same.

If you find yourself in one of these predicaments, it is in your best interest to consult with a qualified family law attorney for tailored legal guidance. Some of the most widespread misconceptions are laid forth here, along with some helpful legal advice and resources.

In this article, our professional family lawyers Sydney explain all you need to know about the myths about family separation and divorce. We believe that with adequate knowledge about family law matters, such as applicable family and relationship law, how to get the best and accredited family law specialist or independent legal advice, property settlement, and general family law issue, you will be well positioned to make good choices with your family law proceedings.

Every expense is shared equally

As youngsters, we were always drilled into the need of sharing, and our natural inclination is to believe that equal distribution is more equitable. As part of a separation or divorce, a widespread misconception is that all property and obligations would be split evenly.

Although this may be the case in certain partnerships, it is by no means universal. There is no presumption in law that the Court would split your marital property and debts equitably.

While there have been some novel property settlement rulings in the courts recently, the following five-step process is still widely considered the best way to fairly divide assets and debts.

Each party’s assets and debts relating to the relationship are inventoried and appraised; the parties weigh whether or not it would be “fair and equitable” to make any changes to their respective property holdings; and a settlement is reached.

Assets and debts are divided according to each partner’s share of responsibility for them, as well as their contributions to the partnership. The term “contribution” is used here in a wide sense to cover both the initial investment and any further contributions made before, during, or after a partnership ends. Both monetary and non-monetary contributions are welcome and valued, such as those made in the roles of housewife and parent.

Then, factors such as the partners’ ages, health, incomes, career prospects, and child-care arrangements are taken into account, as well as any other children the couple may have in the future.

A property transfer between us can be formalized by a written agreement

There are cases where both parties agree to a divorce or separation and may continue to get along. Despite the fact that this is preferable to the alternative, settling a property dispute should not be seen as a weekend job.

Any property settlement agreement must be in accordance with the Family Law Act in order to be legally binding. Even if both parties sign an agreement and a Justice of the Peace witnesses the signing, the agreement is not binding if it does not fulfill the standards of the Family Law Act.

In cases where an agreement fails to be legally binding because it does not comply with the Family Law Act, the agreement will remain in effect so long as the parties continue to act in good faith.

In the event that one of the parties is no longer content with the terms of the settlement agreement, that party is free to apply to the court for new property division terms. The value of the agreement struck between a former partner or spouse and their former partner or spouse has been demonstrated by experience for many people.

The realization that a separation agreement is not legally binding and that one’s former partner or spouse may have a claim on assets acquired after the separation can be particularly upsetting. These assets could include, for example, an inheritance from a relative, a redundancy payout, or a personal injury claim.

If you and your spouse are getting a divorce or legal separation and have reached an agreement on how to divide your assets, you have two options under the Family Law Act. The first choice is consenting orders when the parties submit paperwork to the court asking that their agreement be formalized as a court order.

You don’t need to show up in court for this; instead, just submit the necessary documents to the Court. The second choice is a legally binding financial agreement between the parties.

All property and debts entered into by either party remain in the relationship

Our attorneys often hear from clients that they want to be in the same financial situation after the divorce as they were before it. This means that they want to take out the same assets and obligations that they brought into the relationship. This myth is appealing because of its seeming simplicity, but in reality, dividing assets upon divorce is rarely that straightforward.

In the course of a relationship, especially a long-term one, each party may sell some or all of the assets they brought into the union for a gain or loss, using the money to fund future purchases.

It’s also possible that some or all of the initial debts and loans have been repaid, reduced, or replaced by more borrowing, and that some new debts and loans have been incurred. In reality, numerous things might happen during a partnership that could alter the initial wealth and liability distribution.

Although there is no hard and fast rule stipulating that each party must leave the relationship with the same amount of assets and liabilities that they brought into it, it is a well-established principle of law that each party must be compensated for their fair share of the relationship’s assets and liabilities.

All the money you put in, from the beginning to the end of the relationship and even after you break up, counts. Non-monetary contributions, such as those made in the roles of housewife and father, are just as welcome and appreciated as monetary ones.

My spouse’s extramarital affair is grounds for reducing their inheritance share

Infidelity is a common cause of marital dissolution. When one spouse or partner feels wronged, they may view the property settlement as a manner of punishing or holding the other accountable for their actions.

Australia’s family law system is unique in that it is fault-free. This implies that the morality of the circumstances surrounding the breakup, such as whose decision it was to end the relationship or fidelity issues, will not play a role in determining how the couple’s assets and debts are divided.

Your property settlement under the no-fault family law system won’t be like a contentious episode of the Jerry Springer Show, with both parties revealing their dirty laundry; instead, the focus will be on the contributions of the parties and the future needs of the parties.

While it may be upsetting for the spouse who feels wronged to realize that the property settlement procedure functions on a no-fault basis, understanding this will help to reduce the hassle and cost of the divorce.

The most time-consuming, costly, and emotionally taxing property settlements are the ones in which one or both parties are led by their feelings rather than by their reason. Visit to read about Advantages and disadvantages of online wills

To end the property dispute, we need to do nothing more than exchange titles

Once a marriage has ended in divorce or separation, the former spouses are free to exchange property ownership.

A simple exchange of property titles between the parties is not enough to establish a legally valid and enforceable property settlement plan under the Family Law Act.

If a property settlement agreement is not legally binding under the Family Law Act, then it is based purely on the good faith of the parties and any party may apply to the Court at any moment for a different property settlement arrangement.

The one-year waiting period before I may initiate a property settlement after our divorce.

Many individuals assume they must wait until they have been divorced for at least a year before they can begin the process of settling their assets. You are mistaken; there is no mandatory waiting period before initiating the property settlement process. A property settlement can begin at the time of separation if both parties agree.

However, there are certain dates by which property settlement must be finalized. The time limit for settling property in a de facto divorce is two years from the date of separation.

It’s twelve months from the divorce date for formerly married couples. If property settlement has not been resolved by the specified dates, an application for property settlement may need to be filed with the Court.

It is crucial that this deadline not be missed, as making an application out of time entails far greater expenses than making one within the appropriate time limit and, even if the Court grants permission for an application to be submitted out of time, there is no assurance that approval will be granted. Click here to read about How do I apply for property and financial orders?


For all you need to know about the Australian family law system, if you are going through any family law matter or family court system proceedings, our experienced family lawyers at Chamberlains can help you navigate the process with clarity so that you can know what to do at the right time and how best to do it.

Our family law firm would make sure you wouldn’t have to bother about the family law court, spousal maintenance issues, family law services, child support assessment or child support payments, or the actions of other law firms against you, our family law team will help you through it all.