Going through a separation can be an emotional minefield without the added complication of navigating through the legal system. You would have been told by a friend of friend that ‘you’ll only get every second weekend with your child’ or ‘50/50 is the standard split for property’ but these are among the many misconceptions about the family law process. While it is always best to consult with a lawyer about your situation, it is a good idea to understand the basics of the legal process.
- The normal child custody arrangement is every second weekend and half holidays.
There is no standard child custody arrangement in family law. The Family Law Act 1975 states that whatever is in the child’s best interest is paramount and that a child’s best interest is to have a meaningful relationship with both parents, except if there is a risk to the child. A meaningful relationship can be something different to each family so you need to think about what works best for you and your child. Some people have a week on/week off arrangement, some people have a one night a week arrangement, it just depends what works for you.
- We’ve been together awhile so we will just split all our property 50/50.
This is not correct either. There is no hard and fast rule for division of finances. Generally, 50/50 is a good starting point for long relationships but then they will make adjustments depending on certain factors. The court takes on a four-step process to separate property:
- Identify the property: the property pool is the value of all assets (like houses, cars, businesses, trusts, superannuation) minus the value of all liabilities (like mortgages, loans and credit cards).
- Consider contributions: the court will look at each party’s financial and non-financial contributions as well as their contribution as parent or homemaker.
- Look at what their needs are: the court will consider factors such as health, employment and whether the person has the care of young child as to what their future needs are.
- Is it just and equitable: the final step to consider is whether the proposed division of the property is fair in all of the circumstances of the case.
- The house/car/business is in my name so the other person can’t get it.
This is not the case. The court will look at dividing the total property pool and this takes into account ALL assets and liabilities no matter whose name they are in. Even if you purchased the house and your name is on title and mortgage, the home will still be considered a joint asset for the purposes of calculating the property pool – but any financial contributions will be taken into account when the court decides how to split the property pool.
- My partner cheated on me/drinks too much/left me so I will get more in the financial division and more time with our child.
When considering the financial settlement side of separation, emotional matters relating to the relationship such as infidelity or substance abuse will have no bearing on the division – unless it directly relates as a contribution. For example, if one party wasted a hundred thousand dollars on gambling during the relationship, this could be considered a negative contribution to the relationship and may be taken into account. Apart from this, any emotional factors will not be considered in property division.
In relation to parenting matters, these types of factors won’t have any bearing on who has custody of the child, unless it directs affects the safety of the child. For example, a person who was unfaithful to their partner will not have any less chance of spending time with their child. However, if one party has a substance abuse problem which affects their parenting ability, this would have an impact on the decision a judge makes as to what time they spend with their child.
- Lawyers are too expensive so I will just sort out my separation myself.
Partially true. Lawyers can be very expensive and if you pick the wrong lawyer, you will find that they may not pay attention to your interests and you will end up spending thousands of dollars more than you should. Lawyers who use a time-costing fee structure will usually end up more expensive as you are charged per email, per minute of your conversation with them and you won’t know what your fee is until your receive your bill. Fixed fee lawyers will give you a fixed quote and explain exactly what that scope of work is, so you know what your fee is up front and you can call your lawyer as many times as you like.
In some situations, there is a lot that you can sort out without a lawyer, like trying to negotiate with your former partner yourself to get an agreement about parenting or financial division. However you should always speak with a lawyer at least once to understand what your rights are to ensure that you can protect your interests. You should also always have a lawyer look at any documents before you sign anything.
Nicole Jevtovic is a family lawyer, mediator and principal at Clarity Family Law Solutions. She is a mum to three young children and is passionate about helping those struggling through the separation process. Clarity Family Law Solutions is a family law practice focused on simplifying the separation process and finding positive solutions to parenting and financial disputes.