Urban Myths

The family law system can seem daunting and mysterious to many, but this is often due to myths and misinformation. There are a number of common urban myths about family law issues in the community, which need some clarification.

Some common such myths include:

1. Once I get divorced, this will finalise my property settlement.

A Divorce will not resolve property settlement, property settlement and obtaining a divorce are two separate matters. Once you obtain a Divorce, however, you only have 12 Months once a Final Divorce Order has been made by the Court to resolve property settlement matters or if you are unable to reach an agreement, to make an Application to the Court about property settlement. In some circumstances, it is possible to seek a property settlement from the Court outside of this time frame, however, there is no guarantee that the Court will accept your application.

A Divorce will also not finalise any issues regarding care arrangements for children.

2. I’ve heard that its standard to have equal time with and responsibility for children, that means I’ll automatically get the kids for 50% of the time after I separate.

Parental responsibility and the time each parent spend with their child/children are two separate matters.  The term used by the Court, being “Equal Shared Parental Responsibility” is not intended to mean that once parents separate, that they each spend equal time with their children. “Equal Shared Parental Responsibility” is a presumption that is applied by the Court which means that the Court considers that unless it is contrary to a child’s best interests, parents ought to consult together  and make joint decisions  about major long term issues in a child’s life, such as where they should attend school, the child’s religious and cultural upbringing and what medical treatment they should receive.

3. ‘Shared Care’ means I get 50/50 custody of the kids.

The term “Shared Care” means that the Court recognises that the children will spend time with each of their parents but the Act also gives consideration to what is in the child’s “ best interests”. There are lots of different variations of the term “shared care”.

The Court does not use the term of “custody” anymore, but intead the Court will make determinations about living arrangements for the child and the amount of time and the frequency of time the child will spend with each parent.

4. My ex-partner is using legal aid lawyers – I am not entitled to receive Legal Aid.

The Legal Services Commission makes determinations about who qualifies for legal assistance under Legal Aid based on individual circumstances. One party’s ability to receive Legal Aid will not necessarily preclude the other party from qualifying for Legal Aid. Parties should contact the Legal Services Commission to ascertain eligibility.

5. I have a children and a property matter but I am not able to receive legal aid for property matters.

In some very special circumstances, based on a means and merits test, a party may be able to receive Legal Aid assistance for property matters. Parties should contact the Legal Services Commission to ascertain eligibility.

6. Legal aid is FREE legal advice and representation.

Whilst it is true to say that where a party meets an eligibly test for Legal Aid, Legal Aid will pay for a lawyer to assist that party, this does not mean that the grant of Legal Aid is free. Most parties must make a contribution of an upfront minimum payment to the Legal Services Commission if they qualify for assistance, for a Legal Aid lawyer. In some cases, there also may be a statutory charge over a property. Parties should contact the Legal Services Commission for more information.

7. I want to do mediation and family counselling but all of the mediation services and Family Relationship Centres are run by church organisations and I am not religious.

Many of the agencies who conduct these sorts of services are run by church based organisations, but they do not determine eligibility for their services based on religion. The services provide assistance to separating parties, regardless of their religious background. There are also some organisations who offer these types of services, such as Relationships Australia SA, who are not affiliated with a religious group or faith value. There are also private Family Dispute Resolution Practitioners who do mediation work, a list can be found in the Referral section of this website.

8. I have a number of bank accounts and other items of property in my sole name – therefore, my ex-partner is not entitled to a division of those assets after separation.

The Court considers all property of a relationship when looking to divide property and finances after a relationship ends, regardless of whose ‘name’ the property or financial asset is in. All financial assets, resources and property need to be disclosed to the other party as part of a property settlement. Ideally, a party should seek further legal advice regarding their obligations in respect to property matters. The Legal Services Commission ( in some cases); a community legal service or the SA Law Society Referral Service can help you find a lawyer to provide you with advice about this issue.

9. My ex-partner and I have come to an agreement between us about property and/or children without arguing about it – that means it is legally binding on us and we don’t have to do anything else.

Whilst it is ideal that parties do reach an agreement between them about property or children ( or both)  either privately or via Family Dispute Resolution, unless documented formally the agreement reached is not binding upon the parties.

Whilst it is true to say that parties don’t have to do anything else once an agreement is reached, it is certainly recommended that parties should get any agreement reached between them documented in a set of Consent Orders that are filed with the Family Court.  A lawyer can assist parties to do so. A party can seek a community based lawyer or a private lawyer through the SA Law Society Referral Service.

10. I can’t afford to proceed with my matter because I cannot afford legal representation.

Whilst in some instances, it is necessary to have a lawyer in a family law matter, it is not a requirement, however it is often helpful to have someone to assist you. Parties are able to be self – represented in the Family Court or the Federal Circuit Court. There is also a duty lawyer available at the Federal Circuit Court to assist parties with family law matters on a ‘one – off’ basis on the day of Court if necessary. If a party requires a lawyer, there are alternatives to private lawyers. Parties can seek legal representation from the Legal Services Commission, community based lawyers or some private lawyers will negotiate a ‘deferred’ payment method following a property settlement. Parties should contact the Legal Services Commission, a community legal service or the SA Law Society Referral Service for further information.

11. I will be able to begin spending time with my child/ren immediately as soon as I have registered for the Children’s Contact Service.

Generally, you won’t be able to commence time at a Children’s Contact Service immediately after you have enrolled. Most Children’s Contact Services are extremely busy and have long waiting lists. Parties who only need to use the handover service at a Children’s Contact Service are normally placed on a shorter waiting list.

In either case, the Children’s Contact Services have a strict procedure to follow to enable parties to use the Children’s Contact Service.  Both parties are required to enrol at the same location by completing an Application and a number of forms.  Once both parties have done so and returned them, their application is complete. Most Children’s Contact Services conduct an “ Intake” interview and once this is completed, then they await a time for a place to become available.  For this reason, Children’s Contact Services are only able to begin time for parties once parties have gone through this process.

Children’s Contact Service understand that the wait and process to use the service can be frustrating, but will do their utmost to enable parties to use the service as soon as possible.

A Children’s Contact Service is used when parties are Ordered by the Court to do so or it has been arranged by way of a Parenting Plan (or other form of written agreement).  Children’s Contact Services are a safe way for one parent to spend time with a child/ren or a service which enables handover for children where parties are highly conflicted or there are concerns about one parties’ capacity to provide adequate care for the children.

Parties cannot use the Children’s Contact Service unless there is an Order or some form of written agreement between the parties to do so.