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Two Common Misconceptions We Should Discuss

by | Jul 12, 2020 | Family Law

No-fault Divorce in Australia Jeopardising Mother’s or Wife’s Position

For decades, if you wanted a divorce in Australia, you had to prove your spouse was to blame. This all changed in 1975 with the introduction of “no-fault” divorce and the Family Court system.

When the notion of no-fault divorce was introduced, not everybody was in favour of this. Professor Shurlee Swain of the Australian Catholic University discusses the fear, particularly from the women cautious of this change, stating there was a great amount of fear that women will be short-changed and left high and dry by it because the vast majority of women still at this stage are not in full-time employment, and so marriage has been their career.

Whilst Australia continues to implement no-fault divorce in their Family Law Courts to date, it is important to note that non-financial contributions made by the parties are assessed and considered by the Courts, including homemaker contributions, in a property settlement case. This is a recognition of the domestic duties performed by a party to a marriage, including cooking, cleaning, gardening, and looking after the children. If a party in a marriage performs these duties whilst the other party works full-time earning an income, the Court is likely to deem the contributions of both parties as equal towards the marriage, unless proven otherwise.

Being in a De-facto Relationship Will Save Me From the Cost of Divorce

De facto breakups can be just as expensive as divorce.

If you and your partner have lived together in a genuine domestic relationship for at least two years, and or have children together, you are likely in a de facto relationship. If this unfortunately falls apart, assets including superannuation can be pooled together and divided, similar to how it would be for married couples going through a divorce – with either party making claims on the other’s property, or superannuation.

What would make the break up complicated are generally situations where the couple decided to buy a home together, or if one party had a property or a business at the start of the relationship. This may end up costing both party significant legal fees in situations where only a relatively small asset pool is involved. There is also no difference in the delays and heartache between de facto couples and married couples in light of separation.

One way to avoid legal fees being spent in the unpredictable event of separation is to draw up a pre-nuptial agreement during your de facto relationship. An ideal time would be when the couple decides to cohabitate together in a property owned by one party alone, or when the couple buys a home together.

In the absence of a pre-nuptial agreement but your de facto relationship has broken down, it helps to have your financial information ready and to get advice as soon as possible if there is a legal threat in a de facto dispute.

If you are concerned about any of the issues discussed in this article, please do not hesitate to call us on 03 9614 7111 and consult with our friendly team of experts.