By | 2020-07-04

As family law is so widely used in society, clients can accidentally spread common myths about family law that simply aren’t true. This article aims to set you straight with some truth-talking when it comes to family law and family lawyers in Melbourne.

Truth 1 – Waiting 12 Months Before Divorce

Any family lawyers in Melbourne will be able to tell you that couples need to wait a minimum of 12 months after separating before they can file for an application for divorce. This 12-month period must demonstrate an irretrievable marriage breakdown. The period can involve reconciliations of up to 3 months before the separation period is reset. If there are reconciliations, the total time of separation will include periods before and after brief reconciliations.

Truth 2 – De Facto Definition

There’s a common myth that couples must live together for two years before they’re considered de facto. But the best family lawyers in Melbourne will be able to tell you that cohabitation is only one criteria for de facto status. Other factors that can impact this can include whether they have children, if they share their finances, how they present their relationship to other people, and whether it’s a sexual relationship. Sometimes a couple could be thought of as de facto even if they live together for less than half of the year.

Truth 3 – Super is a Property of Marriage

Leading family lawyers in Melbourne can tell you that since 2002, the Family Court treats superannuation as a “property of marriage”. This means that couples can split up their super entitlements as part of their property settlement. There are some exceptions to this, and splitting super does not turn it into immediate cash, either. Splitting super is not necessary, but it can be used to offset division of other assets.

Truth 4 – No Parent Rights

Parents do not have rights in relation to their children, only responsibilities. Terms of the Family Law Act 1975 specifies a child’s right to have a meaningful relationship with both parents. The only time when this is waived is when there are concerns about the safety of the child. Parenting matters are always worked at according to what is best for the child, not according to any right of a parent.

Truth 5 – Court Proceedings Unlikely

Family lawyers in Melbourne may advise you that not many cases relating to family law will reach trial. This is because Family Court prefers mediation over trial due to delays in being listed for trial and also because of the large cost of legal proceedings.

Truth 6 – Children’s Issues Demand Mediation

Couples must attempt mediation before engaging family lawyers to pursue Family Court proceedings about children’s issues. If mediation is not possible or practical, or if there is violence or a risk to the children’s welfare, then this expectation is waived.  

To gain a more comprehensive understanding of family law, consult with suitably qualified and experienced family lawyers in Melbourne.

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