Myth Busters: Busting 5 myths about divorce and family law

June 28, 2018

Everyone has experienced that moment when watching TV and a character is portraying your job on screen and it is nothing like your day to day reality.  None more than lawyers and doctors. Alas it’s true…being a lawyer is nothing like Suits or Ally McBeal.  There is no Harvey Specter.  There are no actors turned duchess’ in the halls. And I am positive that Hospitals are not rife with interns and registrars secreting away for some “alone” time in the middle of rounds. Thanks to TV and sensationalist media there are so many misrepresentations of our lives and the realities of our experiences. We have found some of our favourite myths about divorce to share with you along with the real state of play in the divorce space. 

Myth 1 – You will get more if your Ex committed adultery

In Australia, we have a no-fault divorce system which means that no matter how the relationship ended or the reasons behind it, this factor is not relevant to the Court in granting a Divorce Order and has little or no bearing on how the property is split between you and your Ex. 

To get a divorce in Australia, you just have to prove you have been separated for 12 months.  If you have filed your application correctly and given a copy to your Ex, then the Court will make the Divorce Order.

Adultery will only be relevant in a property settlement if you can show that it has been accompanied with dissipation of assets by your Ex.  Similarly, in parenting matters, adultery will only be relevant if it impacts on the child’s best interests.  Unfortunately, a bitter pill a number of people going through divorce have to swallow is that their Ex may form a permanent relationship with the person they had an affair with.  This means that your kids may come into contact with that person. 

Myth 2 – Visitation can be denied if your Ex doesn’t pay child support

This one is a big no-no. How a child spends time with a parent is not connected to whether or not the parent pays child support.  If you stop time between your child and your Ex, then you have to be able to prove that that step was in your child’s best interests.  Rarely has the Court viewed that the non-payment of child support is a sufficient reason.

Myth 3 – Mothers are always awarded primary care

Decisions about where kids live and how much time they should spend with each parent is based on what is in the best interests of the child.  One of those factors is not gender. 

Although it must be said that even though society has moved forward, there are a number of families (including those with working mothers) where mum is the primary caregiver of the children.  This means that women frequently remain the primary caregiver, however, the time dad spends with the kids looks a whole lot different to 10-20 years ago.  Dads are increasingly spending significant time with their kids during the week, on weekends and on holidays.  We act for a number of dads who are the primary parent for their children for a host of reasons.  The days of a “weekend” dad have gone and children are enjoying greater diversity in their experience of their parents, routines and home life.

Myth 4 – Children get to pick who they live with

Parenting arrangements are determined by what is in the best interests of children.  There are a number of best interest’s factors in the Family Law Act 1975 and one of them is the views expressed by children.  What this means is that an expert (usually a family consultant, social worker or psychologist) will glean a child’s views.  The Court will consider those views, however, the Judge is not bound to adopt the views and what weight is placed on those views is dependent on the child’s age, maturity and whether they have been influenced to express a certain view.

Myth 5 – I’m entitled to 50/50 time with my kids

As mentioned earlier, a parenting arrangement will be determined based entirely on what is in the best interests of the children.  We frequently see requests for 50/50 time when parties are in high conflict, can barely communicate with each other and those requests are a lot more about what a parent perceives as their “rights”, rather than what is best for the kids.  The Court is under an obligation to consider an equal time arrangement, however, it will only make the equal time order if it is in the children’s best interests to do so, it is reasonably practical and the parties have some type of working relationship. 

If you want to get the facts on your situation so you can make informed decisions, then please contact us for an initial meeting. 

We offer a comprehensive 2-hour STRATEGY SESSION where we will listen to your story, identify your goals and concerns and provide you with advice specific to your situation. 

We would love to help you to move forward. 



This article is for general information purposes only and does not constitute legal advice or any other professional advice.

Feeling unsure where to start?

Let us guide you through what’s involved in untangling your relationship and give you the tools to set yourself up to move forward.

Feeling unsure where to start?

Let us guide you through what’s involved in untangling your relationship and give you the tools to set yourself up to move forward.

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