Family law FAQ

The law can sometimes be confusing around the issue of custody (a term no longer used in Australia) but one thing is clear - there is no automatic presumption that children should spend equal time with each parent. 

The most important thing to consider is what is in the best interests of the child. There are several relevant factors. Importantly, parents do not have entitlements – they have obligations.

No, they do not. 

Being in a de facto relationship with someone does not automatically result in an equal (or even any) split of assets, especially in shorter relationships. For more information about how property settlement works, visit the link below.

In most property settlement and parenting matters, this will not be a relevant factor. 

The family law system in Australia is a no-fault system and has been this way since the 1970s. Although sometimes this may seem unfair, the rationale is that property, parenting and divorce matters can be settled more appropriately where blame is not being apportioned.

No. 

Although you can’t apply for a divorce until you have been separated for 12 months, you can have a property settlement much sooner. In most cases, we recommend that you resolve property matters before you get divorced as strict time limits apply after divorce.

There is no obligation for either party to move out of the family home following separation. There are some exceptions – most importantly where there is family violence. 

In cases where there is no violence, separated parties may live together separated under the one roof. This isn’t always ideal or healthy so, if you decide you want to move out, seek advice about your options and what this means for you before you make any firm plans.

No, not absolutely, but their views may be taken into account.

Under the family law, the wishes of the child is one of many considerations when determining what is best for the children. 

No. 

A statutory declaration is not a legally binding and enforceable family law property settlement. Similarly, verbal agreements are not binding. It is important to make your agreement legal to avoid further claims down the track.

Except in specific circumstances, going to court should be the last option. 

There is usually benefit to settling a matter out of court including saving money on legal fees, preserving relationships, reducing stress and getting it done quicker.

Yes. Superannuation will form part of the asset pool available for division.

Yes. 

Under the family law, each party has a legal obligation to make full and frank disclosure of their assets and financial position and there may be serious consequences if you fail to do so.

In certain circumstances, particularly those involving family violence (or the threat of violence, intimidation or coercive control), it may be appropriate to change the locks once your former partner has moved out. 

There may be other circumstances where this action is appropriate. We recommend that you seek legal advice from a family lawyer before doing so.

Not usually. In most family law cases, each party will pay their own legal fees.