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 Not 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 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 Not Automatically Split 50/50
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, including:
- The value of assets and liabilities
- Financial contributions such as income and investments
- Non-financial contributions like homemaking and caring for children
- Future needs including age, health, earning capacity, and childcare responsibilities
The ultimate goal is to reach a fair and equitable distribution, which may not necessarily be an equal split.
It's Not 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 always made with their overall welfare in mind. It is crucial to avoid placing pressure on children to choose sides, as the court seeks to minimise their stress and ensure a stable environment.
Getting Divorced Does Not Mean Going to 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 before proceedings can begin.