There are many misconceptions or “myths” in family law that can lead to separating couples making poor decisions that are not in their best interests. We debunk some of these common myths below.
Myth 1: “I am not married so I don’t need to have a property settlement”
Not true; save for very limited exceptions, all de facto and married couples are required by the Family Law Act to formally end their financial relationship through a property settlement within a specific time period. If in doubt, it is always best to seek advice on whether a formal property settlement is required.
Myth 2: “Property acquired after separation is not relevant”
This is also incorrect. Whilst the inclusion of assets acquired post-separation will always depend upon the circumstances surrounding the acquisition of the asset, as a general rule, the asset will usually be included in the property pool. For example, in a recent court case, the court made a decision to include in the property pool, an inheritance of $715,000.00 received by the husband five years after separation. This is a classic example of why property should be divided and a property settlement formalised soon after separation— not years later.
Myth 3: “If my ex and I agree on the division of our assets, we do not need a lawyer”
Once an agreement is reached, it is important that it is formalised in one of the two ways recognised as binding and enforceable by the family courts. The parties can apply to the court for consent orders or they can execute a binding financial agreement in accordance with the family law legislation and regulations. It is important that legal advice is sought in the drafting of these documents. If a property settlement is not formalised in one of these ways, the family courts will not recognise that a property settlement has occurred, which may leave parties vulnerable to a later court application seeking a further adjustment of property interests. There are additional benefits in formalising a property settlement including eligibility for an exemption on transfer duty on any property transferred between spouses.
Myth 4: “Most property settlements are 50/50”
This is another common misconception. What percentage of the property pool a spouse is entitled to is calculated by applying complex legal principles and precedents. It includes consideration of many factors. We encourage clients to obtain legal advice as to their entitlements before discussing the division of their property with their former spouse.
At Miller Harris Lawyers, we understand that separation is stressful and emotional. We work with our clients to provide strategic legal advice which empowers people to make informed decisions about the future and to move forward with their lives. If you are going through a separation, contact our expert family lawyers today on 07 4036 9700 to enquire about our fixed fee initial consultations offered at both our Mareeba and Cairns offices.