“I just want what is fair” or “I just want half” is a common statement from clients in an initial conference when it comes to property or time with children.

 

It appears that there is a lot of messaging out there that when you separate, what you have in a relationship is just divided down the middle and everyone walks away – happy days. 

 

But is this correct? In some cases, yes. More often than not, the answer is no. Either way, what is important is understanding the “why” it is the case and the “how” it is important that what ever the outcome, any division in assets or time with children is completed in a way that is legally binding and that parties can stick to.

 

Let’s take a step back and discuss how the legal framework and Family Court system operates. Many people at this stage will say “but we have decided not to go to Court!”. That may be the case, but does not equate to legal process not needing to be satisfied.

 

Starting with finances, it is important to note that Australia is a country which has approached the division of assets from an ‘equitable distribution’ perspective, meaning there is no mathematical formula to determine how assets are going to be divided, nor is there a rule that parties just “go halves” in dividing their assets. 

 

Rather there are many factors to consider when determining what is a ‘just and equitable’ division of assets, including but not limited to considering:

 

·       What assets each party had at the start of the relationship

·       Any gifts or inheritances received during the relationship

·       How much each party earns now and future earning capacity

·       How much time each party is spending with the children

·       Any health issues of either party.

 

For an agreement to come to be and also to satisfy the legal requirements within a legally binding document, suddenly it is not that simple, and this is why getting advice from an experienced family lawyer is so important!

 

Now let’s throw in some more complexity - what about the children?

 

Similar to the division of assets, there is also a misconception in the community that the starting point for parenting arrangements is to spend equal time with parents. 

 

Again, it is not so simple. In the eyes of the Family Court system, the best interests of the children are the most important and overriding consideration in determining what time the children should spend with each of their parents, and an equal time arrangement will only be considered where it is in the best interests of the children for that to occur.

 

It is more common for children, particularly those who are younger, to spend a majority with their primary attachment parent and spend substantial and significant time with the other parent.  However, this is not always the case, and each case is determined on its own unique circumstances. But “majority” and “substantial and significant” will vary from family to family, so it will need to factor in many variables that need to be deeply understood and planned for.

 

Separation is a time of uncertainty, and it is normal and expected to be worried about what that means not only for the division of your assets, but the division of your children’s quality time.

 

It may feel like the best thing to do when there is so much to consider is to ask the internet at this point. Perhaps put it out there on social media to ask what happened to a person in a similar situation, you say?

 

We can almost guarantee that this advice (let’s not even call it that) will be incorrect for your own set of circumstances and will only add more complexity when you take action or try to resolve issues yourselves and then have to backtrack later when the arrangement can’t be made legally binding.

 

As such, it is important to get advice early and empower yourself with knowledge.  Then, once you have a framework and plan, it may be that you can save time and money by actioning certain aspects of the process yourself.

 

To recap – when it comes to separation it is an extremely common misconception that everything gets split 50:50. Even if you and your ex willingly agree to this arrangement, things aren’t so simple.

 

Our excellent and experienced team has availability to meet with you and help guide the process by delving into your unique circumstances and planning together to ensure what you do agree to can be formalised in a way that is recognised by the law.

 

Even if you haven’t decided to raise the prospect of separation with your spouse, everything you discuss with us remains confidential and you are in control of what next steps and communication are

 

You can book a free discovery call here or call us at the office on (02) 8379 1835 to find out more about what we’ll need when it comes time to getting advice and planning in your matter.

 

Author: Kalisha Martin, Senior Lawyer

Lagom is Swedish and means not too little, not too much, just right. This is our philosophy of practice as we aim to provide tailored advice specific for your individual needs - that’s just right for you!

Lagom Family Law is a boutique legal practice lead by Principal Lichee Hogland who strives to achieve the best possible outcome for her clients whilst being approachable and respectful.