Family law myths

These are stories or opinions on family law which may have a grain of truth but are just wrong.

  1. All family disputes go to Court

    This is not true. Statistics show that only 5% of those who have a relationship or marriage breakdown actually end up in Court. About half of these do not seek legal advice at all and come to their own arrangements. This is particularly the case when there are children. There are even some people who simply separate or even divorce and do nothing about splitting their property. Even when people do go to Court, it is now mandatory to attempt to reach an agreement through mediation before a case can progress to a final hearing.

  2. The mother always gets the children

    The implication here is that Family Court judges always favour the mother in parenting cases. There is no legal presumption that children should be cared for by their mothers. It is the case however, that mothers tend to have more overnight care of children than fathers do. This is not always or often court ordered. Frequently it is agreed between parents. There are a number of sociological reasons why children tend to spend more time with mothers than fathers. A common reason is that the arrangements that were in place before separation tend to be continued after separation. The arrangements prior to separation reflect the roles that each party played in their partnership or marriage.

  3. Property is always divided equally

    There is no 50/50 rule in family law property matters, nor is there any mathematical formula for dividing property between parties. It is very much a discretionary decision that is based on a number of factors that are set out in the Family Law Act. These are guidelines only. While an equal division may appear fair, it is not often the case. The person who would be worse off with such an outcome is the one who has sacrificed their career (or work opportunities) to care for children. The longer the person remains out of the workforce the more `unfair’ a 50/50 division of property is to that person. It will rarely restore that person to an earning capacity equal to that of the partner who continued in the workforce. This economic reality is acknowledged by section 75(2) of the Family Law Act. This section examines the future needs of both parties and a comparison is drawn between them as to who may have a greater need as a consequence of the relationship or marriage. The party who is found to have a greater need is given an extra share of property in recognition of that need.

  4. Males come off ‘second best’ financially after divorce

    There are websites dedicated to this subject and they help promote this myth. While this may be the case for a few men, repeated studies that compare men and women after divorce show this not to be the case. The research shows that men tend to recover more quickly financially following a divorce but more slowly emotionally. This is probably due to men having been able to continue with their career paths or full time work uninterrupted by child rearing. If men remain in the workforce throughout the whole period of their marriage or relationship, they tend to have a network of employment contacts which enables them to gain salary increases or other employment. The opposite is usually true of females and it is almost wholly due to their having the greater responsibility for child care. Many detrimental economic consequences flow from this circumstance. The term `feminisation of poverty’ has been coined to describe this situation.

  5. The two year rule

    According to this myth parties who have been together for 2 years or less get no share of the other party’s assets. This MAY be true for a defacto couple who have no children together and who have made no substantial financial contribution to the assets of the other but it would depend on the particular circumstances. It is not true of people who are married. The share one party receives is based on their contributions to the property of the parties. There is also an assessment made of their respective future financial circumstances and if necessary one party will receive an extra amount in recognition of their greater financial need.