1. The person who earned the money is entitled to more than the person who stayed home as homemaker and parent;

There is no family law principle which states that financial contributions are given more weight than the non-financial contributions of a homemaker and parent. Ordinarily, full-time employment over the course of a 30-year relationship would be seen as an equal contribution to the relationship as being a homemaker and parent over the same period.In actual fact, it is common for a wife (or husband for that matter) who has sacrificed their career to act as homemaker and parent to receive an adjustment in their favour to compensate them for their reduced earning capacity and limited employment prospects.On the other hand, if one party makes a significant financial contribution over and above earning a salary (a large inheritance; owning a property prior to commencement of living together; a large compensation payment), this will often result in an adjustment in favour of that party. The degree of adjustment will depend on the length of the relationship, the parties relative future needs, and a number of other factors.

2. Spouses can legally finalise their property settlement without going to Court OR using a solicitor;

It is true that around 50% of separating parties do not seek legal advice in relation to their property settlement. However, a private agreement regarding the separation of property will not finalise your property settlement and prevent a future claim by your former spouse, regardless of whether you were married or de facto and no matter how much time has expired. If the former spouse can demonstrate that they would suffer “hardship” if the court does not hear their claim, it is likely that the court will hear their application.In one example, a husband and wife separated in 1986 and the wife was granted leave to apply for a property settlement in 2009. Her claim was successful, and she received the former matrimonial home by the judgment of the Family Court in 2012.There are only 3 ways to legally finalise your property settlement:

(a) Consent orders filed in the Family Court or Federal Circuit Court; or

(b) Binding financial agreement; or

(c) File proceedings in the court (sue your ex) and obtain a judgment.

If you do not finalise your property settlement via one of these methods, which all require either a solicitor or court intervention, you remain exposed to a future claim by your former spouse.

3. The assets are valued and divided at the date of separation;

The assets, liabilities and financial resources of the parties are divided at the date of settlement or final court hearing, not the date of separation. While contributions received after separation (inheritances, compensation payments, windfalls) may result in an adjustment in favour of the party making the contribution, they will likely still form part of the asset pool to be divided.In consideration of this point, we encourage our clients to finalise their property settlement as soon as possible after separation (provided their former partner is being reasonable), which limits the opportunity for a negative change to the asset pool, which is beyond their control.

4. If I live with my de facto partner for 6 months they will be entitled to half the house;

This is simply not the case. The Family Law Act requires one of the following circumstances before a property order will be made:

(a) the parties have lived together for a total of 2 years or more; or

(b) there is a child of the de facto relationship; or

(c) the party requesting the order made substantial contributions to the relationship (the purchase of property for example) and failure to make the order would result in serious injustice.

Even in circumstances where an order is made, it not a foregone (or likely) conclusion that the order will be for a 50/50 split. All of the relevant factors (financial contributions; non-financial contributions; the need for maintenance) will be considered to establish what is just and equitable in the circumstances.

 

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