Whether they originate from second-hand anecdotes or representations on television, there are a number of myths around family law. Here, we take a look at four of them and explain how the law actually works.
Myth One: You don’t need a lawyer
While the divorce process itself can be relatively straightforward and may be handled without lawyers, matters such as property settlement and child arrangements are far more complex. Without a professional to guide you through such issues, you are unlikely to end up with the best outcome in your circumstances. Both parties should, therefore, access proper legal advice, whether or not matters are contested. This will help to ensure you don’t end up agreeing to something unworkable.
Your lawyer can look at your particular situation and advise you about how the law should apply, and help reach an outcome that is fair and reasonable. Then if matters do escalate, you will naturally need a lawyer to represent your interests at negotiations and hearings. And even if both parties are in complete agreement about child arrangements, a legal specialist can help with documenting and filing this with the Family Court, so it becomes binding.
Myth Two: The mother (or father) will get custody of the children
There are no set-in-stone outcomes for child custody issues. Every family’s issues are unique to their own set of circumstances, (and, in fact, the term ‘child custody’ is no longer even used).
The court considers that an ongoing and meaningful relationship with both parents is in a child’s best interests. The court will also look at what the status of arrangements have been since the parents have separated and other relating factors to determine how the children spend time with each parent. It is deemed that parents have shared parental responsibility unless there are good reasons for giving one parent primary or sole responsibility, meaning that parents are entitled to share all major decision making in relation to the child.
While, in practice, parenting arrangements will vary significantly from case to case, in the vast majority of circumstances each party may end up spending regular and meaningful time with their child.
Myth Three: Going to court is inevitable
While going to trial to resolve property and child issues is a possibility if a suitable outcome cannot be negotiated, there are a number of alternative steps to explore before it gets to that point. Mediation, for instance, can be an effective process that often helps to resolve matters with a workable outcome that’s satisfactory for both parties.
Going to court is a highly stressful experience, particularly when dealing in family law matters that are emotional enough, to begin with, therefore, such alternative mechanisms are very important. In fact, unless there are special circumstances, in children’s matters there is a legal requirement to attempt mediation before making an application in court.
Myth Four: The family law doesn’t apply because we never got married
If you are in a de facto relationship that breaks down, then obviously divorce procedures do not apply. However, the process of sorting out arrangements for any children from the relationship will still fall under commonwealth family law legislation and be dealt with by the Federal Circuit Court or the Family Court just like the children from a marriage. Similarly, the court will determine property matters in the same way as for couples who were married, provided the de facto relationship either produced a child, lasted at least two years or was registered (or where none of these applies the court also has the discretion to intervene if the failure to issue an order would result in serious injustice). Therefore, many people involved in de facto relationships still find themselves dealing with the family law system.
These are complex and often stressful matters. If you are facing issues arising from the breakdown of a relationship, the experienced team at Lindbloms Lawyers are ready to help you. Start by contacting us today.