Blog

Written by Tali Miller, Trainee Solicitor

Navigating divorce can be challenging, especially with common misconceptions clouding your understanding. Here, we debunk some prevalent myths to help you move forward with clarity.

Separation is the Same as Divorce

Separation occurs when one or both spouses decide the marriage is over and communicate this to the other.

It is a matter of fact, not law. Divorce is the legal process of ending a marriage and requires 12 months of separation before you can apply for a Divorce to end your marriage contract.

My Spouse and I Need to Agree to Obtain a Divorce

You do not need your spouse’s agreement to get a divorce. One spouse can apply individually without the other’s consent, but they must serve the divorce papers to the other party. Joint applications are also possible.

Fault and Property Division

Australia follows a “no fault” divorce system. The court does not consider who is to blame for the marriage breakdown, only that it has irretrievably broken down. Infidelity or other faults do not affect divorce or property settlements. The court focuses on contributions and future needs, not the reasons for the marriage breakdown.

Divorce and Property Disputes

Divorce does not resolve property disputes. You must apply for a property settlement within 12 months of the divorce becoming final. Delays beyond this period require special court permission. You can start a property settlement any time after separation, even before divorce. Many couples resolve property issues before applying for divorce to avoid complications and ensure financial stability.

Assets are Split 50/50 When a Couple Separates

A common misconception is that assets are automatically split 50/50 when a couple separates. In reality, the division of assets is based on various factors to ensure a fair distribution. These factors include the value of assets and liabilities, contributions (both financial and non-financial), and future needs of both parties.

The court considers financial contributions such as income and investments, as well as non-financial contributions like homemaking and caring for children. Future needs also play a crucial role, taking into account factors such as age, health, earning capacity, and responsibilities for childcare. The ultimate goal is to reach a fair and equitable distribution, which may not necessarily be an equal split.

It’s Up to the Children to Decide Where They Live

While children’s wishes are considered, custody is determined based on their best interests, including age, maturity, and relationships with each parent. The court evaluates these factors along with the child’s safety and well-being. Older children’s preferences may carry more weight, but the final decision is made with their overall welfare in mind. It’s crucial to avoid placing pressure on children to choose sides, as the court seeks to minimize their stress and ensure a stable environment.

Getting Divorced Means I Must Battle It Out in Court

Most divorce-related matters are resolved outside of court through negotiation and mediation. Only a small percentage of cases go to trial. Courts encourage early resolution and require proof of mediation efforts.

Seek Professional Advice

Divorce is a complex and difficult time in one’s life. Contact Kingston Lawyers on 03 9585 6455 and seek advice from one of our experienced family and divorce lawyers to understand your rights and navigate the process smoothly.