5 myths about divorce

1. The marriage is definitely over, so I want a divorce right now.

It may come as a surprise to some, that there is no such thing in Australia as a ‘quick divorce’. In fact, our law requires a Husband and Wife to have been separated for a period of 12 months as evidence that the marriage has ‘irretrievably broken down’. There are no shortcuts, you just need to wait out the time.

For the majority of our client’s, divorce is not the most important issue following the breakdown of a marriage. It is the division of the assets and liabilities and the future care of any children that needs to be addressed and this can occur any time after you decide to separate.

2. I can’t get a divorce because my partner will never agree to it.

While it would appear that you need to be agreeable to marry, you do not have to be a willing participant to a divorce. A person seeking a divorce does not need to have the consent or even cooperation of the other spouse. In fact, an application for divorce can be made once a person believes that they can satisfy the Court that the marriage has ‘irretrievably broken down’.

Willingness can be dispensed with but knowledge can’t. Even the most unwilling spouse, in all but some exceptional circumstances, must know about the divorce hearing before it happens. In satisfying the Court that that the other party knows about the divorce there are some important time frames that must be adhered to and strict rules about the service of Court documents. Get the process, paperwork and procedures right and a divorce will be granted.

3. The Court will be against me because I was the one to have an affair.

While an an affair may have ended the marriage, it has no place in the law. Under Australian law, adultery in not even considered grounds for divorce. When it comes to divorce we have what is described as a ‘no fault’ jurisdiction and that brings you back to the need for ’12 months separation’ to show that the marriage has ‘irretrievably broken down’. The court that hears the divorce doesn’t even get to hear about the affair.

An adulterous affair has no place in the application of the law to the division of matrimonial property either. While there may sometimes be emotional leverage that can be used against the ‘guilty’ spouse in negotiations, it has no place in Court. The principles of law that guide the division of matrimonial property are grounded in the assessment of financial and non-financial contributions, any future needs and the desire to achieve a result that is just and equitable.

Importantly, conduct of a parent becomes relevant to a Court when it impacts on the wellbeing of the children. Protecting children as much as possible from conflict between the parents will minimise any adverse consequences in parenting proceedings. It is the bitter conflict that can follow, not the extramarital affair itself, that can have lasting consequences before the court.

4. In the end the Wife gets it all.

This is perhaps the most common myth surrounding divorce that should be debunked. We have all heard the stories of how the man had to give it all to his wife and start again. The reality is very different and the myth leaves people unnecessarily concerned about the Courts becoming involved in their financial affairs.

The division of the matrimonial property pool between a husband and wife by agreement is usually guided by the same principles of law that are applied by the Courts. The reason for this? Well, if you stray too far from what the Court would do then the party getting the raw end of the deal will probably seek the assistance of the Court.

The Court applies a process that assesses the financial and non-financial contribution of each party, a consideration of what the future holds and applies an overarching principle that the result must be just and equitable. While the result reflects individual circumstances for most people, an experienced lawyer will be able to give you a good indication of what the end result will look like.

5. There is no reason to see a lawyer until I am ready to divorce.

From experience, we know the true value of seeing a lawyer early. Decisions that you make before and after separation can have a lasting impact on the outcome of any settlement reached. All too often, we see new clients who realise that their former spouse has been guided by legal advice in making decisions for some time.

Following the breakdown of a relationship there can be many decisions to be made about the financial, property and parenting aspects of a relationship. An experienced family lawyer will provide you with advice tailored to your individual circumstances. Time and time again, we observe how knowledge and information can empower our clients to make the best possible decisions for their future.

Even when agreement is reached between the parties, sound legal advice will draw attention to potential tax implications of any agreement reached or provide the mechanism for the splitting of superannuation or non-payment of stamp duty on a property transfer.

It is really only necessary to obtain a divorce if you are planning to re marry and people usually begin to deal with the property and parenting aspects of a relationship breakdown before a divorce is sought. It is important to remember that time limits apply following divorce and that you should contemplate the impact of obtaining a divorce on your individual circumstances.

Elizabeth Hogg27 July 2017Myths about divorce