There are always lots of divorce and family law myths floating around out there and we often come across clients who get caught up believing or not believing them.

As the law changes regularly, it is easy to get confused, especially when discussing your case with family and friends (which you shouldn’t be doing) who may have had a similar experience some time ago not realising the law has changed!

Here are ten family law questions received in the past months from of our clients:

Are premarital assets protected in divorce?

Assets acquired pre-relationship / marriage are still looked at by the Family Court along with gifts and inheritances. It does not matter which partner paid for what assets or where the money came from.

However there is what is known as an erosion principle, meaning over time the value of pre-marital assets are reduced. This can be a complicated area with the court also looking at the effect of the asset on the marriage i.e an investment property returning profit during the marriage for both parties.

Are assets always split 50/50 in divorce?

It is commonly thought that assets in divorce settlements are split  50/50. Family law would be far less complicated if that were the case but unfortunately automatic entitlement is a myth. No two cases are ever the same when splitting assets and there is a high level of skill and knowledge required when acting in these types of matters.

When splitting assets, Courts consider factors  such as the future needs of each party as well as an overall view of what is fair and equitable.

Can I get a divorce in Australia if married overseas?

Overseas Elvis, Islamic and dinosaur inspired weddings are all valid in Australia. As long as your wedding was recognised under the law of the country you were married in, and the marriage would have been recognised as valid under Australian law if the marriage had taken place in Australia, you will be ok.

You will need to provide documentation/evidence of your overseas marriage so as long as you satisfy the above, you are ok to get divorced here. Ensuring you have these documents available will also ensure the divorce cost is minimised.

Is child custody is a 50/50 arrangement?

There is an assumption that the starting point for child custody is a 50/50 split between parents. However shared care can be impractical and sometimes impossible. The Family Court decides custody by considering what is in the best interests of the child (not the parent), with each case determined on its facts. For example one parent might be working full time and live in another State making a 50/50 arrangement impractical for the child. If there has been family violence or sexual abuse in the relationship, a parent can lose their custody all together.

Learn more on child custody and support.

Does it matter to court why a marriage has ended?

Australia has a principle of no fault divorce. This means Courts are not interested which spouse was at fault in terms of a marriage breakdown when granting a divorce. An experienced Divorce Lawyer should be able to talk and walk you through the divorce process ensuring the reason is not brought up.

Family law would be far less complicated if assets were divided at 50/50 however automatic entitlement is a myth.

Do I need to get divorced before property settlement?

There is no legal requirement in Australia for you to be separated or divorced in order to commence, continue or finalise a property settlement with your estranged partner.

However, there are many dangers in delaying a property settlement with your estranged partner, such as changes in property prices, assets and your needs and wants for the future. Make sure you start your property settlement as soon as possible following separation or divorce.

Learn more on property settlements.

Do mothers always get child custody in divorce?

This is a common misunderstanding and parents can live with the Mother or the Father.  There is no presumption a child should live with one parent versus the other. Every child has a right to have a meaningful relationship with both of their parents and court will always look first at what is best for the child.  It is quite common for children to live with their Father full time.

Am I entitled to move because my partner was unfaithful?

Australia has a no-fault divorce system. This means that it is irrelevant what your estranged partner did (and with who) and proof is not needed or able to be taken into consideration during family law proceedings.

Can I apply for a divorce even if we are still living under the same roof?

Divorce can still take place even if you are living in the same place as your estranged partner. It is very common (especially with Sydney house prices) for former partners to continue living together under the same roof for financial and convenience reasons.

There is a slight complication when living under the same roof in that you need to provide evidence that you are separated. This can be done through a variety of ways such as obtaining affidavits from family and friends who can support what you are saying.

Learn more on divorce proceedings.

Who gets the frequent-flyer points during a divorce?

The matter of what happens to airline points when you get divorced is very problematic when it comes to divorce settlements primarily due to the fact they are difficult to value, with Judges having difficulty agreeing on the issue. What we do know is that frequent flyer points are an asset under family law proceedings and can be included as part of a person’s assets, even if not transferable.

Do you need a lawyer to help you with family law or provide you with independent legal advice? We are available after hours and provide home visits to fit around your busy schedule.

Last updated on April 9th, 2019 – Written by Jeremy Maspero.

Jeremy Maspero is a family law lawyer with a diverse range of experience and skills. With the experience you need and results you want, contact Jeremy today for a consultation to understand how he can help you on 02 8052 3322 or jeremy@masperolegal.com.au.


Disclaimer: The legal content on this website is produced by lawyers at Maspero Legal. It is offered for general interest only and should not be construed as specific legal advice as every situation is different. People seeking legal advice relevant to their particular situation are encouraged to contact a lawyer from Maspero Legal.