Separation & Divorce Myths – What To Know When Separating [2024 Update]

Myth: A Father Is Rarely Given A Shared-Care Arrangement

One of the most common separation and divorce myths is the thought that the mother will always get primary care of the children when a separation occurs. This is not the case, as there is no law or presumption in Australia that a mother should get greater rights to a child than a father. In fact, the law is not about parents’ rights at all.

When making decisions for parenting arrangements, a Court is to consider what is called the ‘determining a child’s best interests’ factors. Prior to May 2024, a Court was required to consider whether a child spending equal time with each parent was in the child’s best interest and reasonably practicable. Now, the first factor to consider is now:

“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”

The first factor to be considered when considering what is in a child’s best interests is “what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child; and  each person who has care of the child (whether or not a person has parental responsibility for the child).

This means that a Court (and therefore all separating parents), must first consider their children’s risk and ensure their safety and wellbeing. While safety was always paramount in a Court’s decision making, it had not been listed as the very first factor in decision making when looking at what is in a child’s best interests.

Age & Specific Needs Of Children

That being said, if you have very young children that haven’t spent much time with their father due to their age, such as a baby that is being breastfed, then the social science behind recommended parenting arrangements is that shorter, more frequent visits with the father is going to be best to try to establish that bond with him while the child is very young.  However, there is no rule of thumb that the children go with the mother. There are a range of factors that are taken into account such as what the arrangements were during the relationship, or whether the child is primarily attached to one parent, along with practical considerations as to how the time will work. 

What If A Father Has Had Little Contact To Date?

When there is a situation where a father has had very little to do with a child but now wants to be more present, the fact that he didn’t have any historical involvement may not disqualify him from being able to build up a relationship and spend time with his child. 

However this may take some time. In these circumstances, it may be appropriate for a child’s time with their father to gradually increase over time, unless there is a reason (such as the safety of the child or their other parent) as to why it shouldn’t be the case.

Myth: “I Need To File For Divorce”

People first contact a law firm asking for help to ‘get a divorce’. Many don’t realise the distinction that a divorce is the legal end to a marriage that can only occur after you have been separated for 12 months or more.  When you initially separate, what you can do immediately is sort out your property settlement and parenting arrangements straight away if you wish. These are the two key elements that should be initially completed.

Related: Why You Don’t Need To Wait 12 Months – The Processes In Divorce

A Divorce Order itself is a single document that says you are no longer legally married. As an example, sometimes people go through negotiations and/or Court and have a property settlement finalised and may still be legally married, as they are not yet eligible to apply for a divorce. At the earliest, divorce can be granted 12 months after the date of separation.

Getting advice from a lawyer when you separate is essential, as sometimes it might not be advantageous to file for divorce as soon as the 12 months is up. For example, I had a client with a family trust set up who then filed for a divorce. The way the trust was set up was that it only included the former partner as a beneficiary, if they were a spouse. This is not an uncommon set up as a way to achieve income splitting for tax effective purposes. Because the divorce had gone through the husband didn’t realise that because his ex-wife was no longer his spouse he was not able to distribute income to her anymore causing tax implications that he hadn’t previously considered. Another example is a client I worked with had not yet finalised a property settlement. Given that a divorce triggers a time limitation to start running once finalised by the Court, she decided to hold off making an application until the financial settlement could be further progressed. 

It is for reasons like this that it is highly recommended, for your own benefit, to seek advice about the timing of when you file for a divorce.

Myth: “If We Separate I’m Entitled To 50%”

At times people assume that when they separate they will be entitled to 50% of the asset pool. While this might be the case for some relationships, it’s not the case for everyone and the Court considers a number of factors to determine the percentage split. 

These factors include:

• The contributions that each of you brought to the relationship from when you first got together;
• The financial and non-financial contributions that you have each made over the relationship; and
• Future factors. This includes income earning disparity, health issues, age differences, age of the children and parenting arrangements into the future. 

These factors are taken into account when the Court considers what percentage of the property pool each party should receive. Each property settlement is different and the outcome is not always going to be 50/50. 

How a Court Determines A Property Settlement

The Court goes through a five step process to determine the division of assets. Even if you do not intend to end up in Court, you must be aware of these steps and they should be considered for property settlements negotiated privately.

1. A determination must be made as to whether or not it is “just and equitable” to make adjustments to the parties’ property interests. Infrequently, circumstances may be such that it is not appropriate to make any adjustments but this is rare. 
2. Identify the property to be divided and the value of that property.
3. Assess each persons’ contributions (as mentioned above) throughout the marriage or de facto relationship.
4. Consideration of ‘future factors’. This involves assessing whether there needs to be any adjustments for each party’s needs in the future based on such factors as age, health, earning capacities and the care of children. 
5. Consideration of the practical effect of the proposed property settlement, and whether it is just and equitable.