When people separate, they are often navigating one of the most emotional and uncertain periods of their lives. Unfortunately, misinformation and misunderstandings about family law are incredibly common, and acting on incorrect advice can have serious long-term consequences.
Below are some of the most common misconceptions we regularly see in family law matters.
Does Divorce Cover Everything Following Separation?
This may be the single most common misconception in family law. People often use the word “divorce” when referring to three separate legal issues:
- The legal end of the marriage
- Property and financial settlement
- Parenting arrangements and parenting Orders
However, “divorce” has a very specific legal meaning. It refers only to the formal legal dissolution of the marriage itself.
A divorce application does not automatically deal with property settlement, parenting matters, child support, or spousal maintenance. The Court will not make Orders regarding those issues within the divorce proceedings unless they are separately commenced and dealt with.
This distinction is important because many people incorrectly assume that once they are divorced, everything else is legally finalised as well, which is often not the case.
Do you have to be Divorced Before Starting a Property Settlement?
Many people believe they need to wait until their divorce is finalised before addressing property settlement matters. In reality, property settlement can begin as soon as separation occurs, and in some cases, even before separation is formally finalised.
In fact, there are often strategic reasons not to finalise the divorce first.
Once a divorce Order becomes final, a strict 12-month limitation period begins for commencing property settlement or spousal maintenance proceedings. After that period expires, a party must seek special permission from the Court to proceed, and there is no guarantee that permission will be granted.
Because parties must be separated for at least 12 months before applying for divorce, many people use that time to begin negotiating and resolving property matters rather than waiting until after the divorce is granted.
Do Property Settlements always require going to Court?
There is a common fear that property settlement automatically means lengthy Court proceedings and stressful Court appearances.
While Court proceedings are sometimes necessary, many matters resolve outside of Court through negotiation, mediation, or solicitor-assisted discussions.
If agreement is reached, the settlement can usually be formalised in one of two ways:
- Consent Orders filed with the Court; or
- A Binding Financial Agreement prepared with independent legal advice for both parties.
Importantly, Consent Orders are generally considered by the Court “in chambers,” meaning the parties usually do not need to physically attend Court for the Orders to be made.
If Both Parties Agree, the Court Will Automatically Approve Consent Orders
Another common misconception is that if both parties are happy with a proposed property division, the Court will simply approve it.
However, the Court must still be satisfied that the proposed Orders are “just and equitable” in all the circumstances before making the Orders.
Even where both parties agree, the Court may request further information or refuse to make the Orders if the proposed settlement appears significantly unfair or does not properly address relevant legal considerations.
Are Assets in One Person’s Name Are Automatically Protected?
Many people assume that if an asset is solely in one party’s name, it remains entirely theirs after separation.
In family law, ownership alone is not determinative. The Court considers the overall asset pool of both parties, regardless of whose name assets are held in.
This can include:
- Real estate
- Savings and investments
- Businesses
- Superannuation
- Vehicles
- Debts and liabilities
The Court then assesses contributions made by each party and future needs before determining an appropriate division.
Can Superannuation Be Split?
Superannuation is often overlooked during separation because people assume it cannot be divided.
In reality, superannuation is treated as property under Australian family law and can often be split between parties as part of a property settlement.
Depending on the circumstances, this can significantly impact the overall outcome of a settlement.
Does Leaving the Home Mean You Lose Your Rights to It?
Many people are afraid to move out of the family home because they believe doing so means they are abandoning their entitlement to the property or their rights regarding the children.
Generally, moving out does not automatically remove your legal rights or entitlements. Property interests and parenting arrangements are assessed based on a range of legal factors, not simply who remained in the home after separation.
That said, every situation is different, and obtaining legal advice before making major decisions can be very important.
Family Law Is Never “One Size Fits All”
Every relationship, family structure, financial situation, and parenting dynamic is unique. Advice from friends, family members, or online forums may be well-intentioned, but it is often based on entirely different circumstances.
Obtaining tailored legal advice early can help you understand your rights, obligations, and options before costly mistakes are made.
If you would like guidance regarding separation, divorce, parenting arrangements, or property settlement, contact the team at Your Divorce or Auslex Law Group.
You can also call 1300 531 137 or email help@your-divorce.com.au to speak with our team about your situation.
