10 Things You May
Not Know about Family Law
Many people share their
experiences and stories from their family law matters with family and friends.
This can create myths about family law. Here are a few little known facts about
1. After separating, couples need to
wait a minimum of 12 months before they are able to file an Application for
Divorce; section 48 of the Family Law Act
1975 (Cth). This period of separation is important to show an irretrievable
breakdown of the marriage. This period does not have to be continuous – the
couple may reconcile for up to three months without resetting the separation
period; section 50 of the Family Law Act
1975 (Cth). In those circumstances, the total period of separation includes
the periods before and after the couple resumes their relationship.
2. FIFO workers beware! – a couple
may be considered ‘de facto’ even though they only physically live together for
half (or less) of the year. It is commonly thought that couples must physically
live together for two years before they attain de facto status. Cohabitation is
one of many indicators of a de facto relationship. Other factors include
whether there are children, whether the parties share their finances, how the
parties present their relationship to others, and whether there is a sexual
3. Since 2002,
the Family Court has treated superannuation as “property of a marriage”. This means that couples can value and split
their superannuation entitlements as part of a property settlement – with
exceptions – see below! Splitting superannuation does not convert it into a
cash asset. Rather, super splitting
orders result in a transfer of funds between the spouses’ superannuation
balances. However, parties to family law
property proceedings tend to prioritise their immediate needs (that is, cash
that they can access now) rather than their long term interests (in the form of
superannuation accessed upon retirement). Splitting superannuation is not
mandatory. However, it can be a useful tool to offset the division of other
splitting in WA is only available to married couples – de facto couples cannot
split their super regardless of how long they have been together.
5. Parents have no ‘rights’ in
relation to their children, only responsibilities. Section 60CC of the Family Law Act 1975 (Cth) provides for a
child’s right to have a meaningful relationship with both of their parents,
unless there are concerns about their safety or wellbeing. That is, parenting
matters are always oriented about the best interests of the children, and not
the rights of each parent.
6. A very small proportion of family
law matters that start in the Family Court actually reach Trial. There are many
reasons for this, including:
the Family Court’s preference for mediated outcomes over Judicial
the delay in matters being listed for Trial; and
the high cost of legal proceedings.
7. Before commencing Family Court
proceedings about children’s issues, couples must attempt mediation. There are
exemptions to this rule, but only in situations where mediation is not
practical or possible due to extreme urgency, violence between the parties or a
significant risk to the children’s physical or psychological welfare.
8. There are time limits for filing
an application with the Family Court for property orders. De facto couples have
two years from the date of separation. Married couples have 12 months from the
date of divorce. If a married or de facto couple fails to file for orders
within those respective periods, then they will need to seek the leave (permission)
of the Court before they are allowed to proceed. The parties will need to:
provide good reasons for why they were not able to finalise their property
settlement within the limitation period; and
satisfy the Court that they would suffer financial hardship if the Court
did not allow them to proceed.
9. Binding Financial Agreements
(BFAs), more commonly known as pre-nuptial agreements, can be made by
intending to marry – section 90B of the Family Law
Act 1975 (Cth);
intending to live in a de facto relationship –
section 205ZN of the Family Court Act 1997 (WA);
are married and not separated – section 90C of the
Family Law Act 1975 (Cth);
are married and separated but not divorced;
are living in a de facto relationship and not
separated – section 205ZO of the Family Court Act 1997 (WA);
were living in a de facto relationship and have separated
– 205ZP of the Family Court Act 1997 (WA);
are divorced – section 90D of the Family Law Act
10. You can run but you can’t hide!
– All parties to a family law matter must provide full and frank disclosure.
The parties must disclose all documents and information which may be relevant
to the dispute. There is no “trial by ambush” in Family Court.
is general information only, and does not constitute specific legal advice. If
you would like further information in relation to this matter or other legal
matters please contact our office on Freecall
1800 609 945 or email us now.