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Family Law Myths Debunked: Expert Guide by Ian Field Brisbane
Navigating a separation is often like walking through a fog of hearsay and “pub law” advice. In my two decades of practice across the UK and Australia, I have seen how family law myths can steer well-meaning people toward costly mistakes. Whether you are in Brisbane, the Gold Coast, or the Sunshine Coast, understanding the […]
Family Law Myths Debunked: Expert Guide by Ian Field Brisbane
Navigating a separation is often like walking through a fog of hearsay and “pub law” advice. In my two decades of practice across the UK and Australia, I have seen how family law myths can steer well-meaning people toward costly mistakes. Whether you are in Brisbane, the Gold Coast, or the Sunshine Coast, understanding the reality of the Family Law Act 1975 is the first step toward a clear, practical resolution.
This guide dismantles the most common myths about family law, explores real-world family law myths examples, and provides the legal clarity you need to move forward with confidence.
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The 50/50 Property Split Myth
Many clients walk into our Brisbane office believing that assets are automatically split down the middle. Under Section 79 of the Family Law Act, there is no such presumption. The court follows a four-step process to determine what is just and equitable, taking into account both financial and non-financial contributions.
Mothers Always Get Custody
This is one of the most persistent 5 myths about family law. Australian law does not prefer one gender over the other. Section 60B mandates that the “best interests of the child” are the paramount consideration. The focus is on the child’s right to a meaningful connection with both parents, as long as it is safe.
The Concept of Fault in Divorce
Since 1975, Australia has operated under a no-fault jurisdiction. Under Section 48, the basis for divorce is that the marriage has permanently ended, demonstrated by the couple living separately for at least 12 months. Infidelity or “who left whom” generally has no impact on property settlements or parenting orders.
De Facto Couples Have Fewer Rights
A common family law myths example is that you must be married to have a claim. In reality, Section 4AA defines de facto relationships, and provided you meet certain criteria (such as living together for two years), you have largely the same rights to property and maintenance as married couples.
You Must Go to Court to Settle
Many fear that hiring a solicitor means a day in the witness box. At Aylward Game Solicitors, we treat the court as a last resort. Most matters are resolved via mediation, negotiation, or Consent Orders, saving you significant emotional and financial stress.
Children Can Choose Where They Live
While the court considers a child’s views under Section 60CC, there is no specific age at which a child is deemed to have formed a view. The weight given to their opinion depends on their maturity and understanding, but the final decision rests on what best serves their long-term welfare.
Assets Are Protected if Held Individually
Simply having a bank account or property in your own name does not protect it from a settlement. The court considers the entire asset pool, including superannuation, business interests, and assets held by either party, regardless of whose name appears on the title deed.
Separation Requires Moving Out
You do not need to leave the family home to be legally separated. Section 49 allows for “separation under one roof.” If you have ceased your domestic life and communicated your intent to end the relationship, the 12-month countdown for a divorce can begin even while living in the same house.
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He Earned It, So He Keeps It
Non-financial contributions, such as being the primary homemaker or carer for children, are often given significant weight. The law recognises that the ability of one partner to earn income is frequently supported by the other partner’s domestic contributions.
Prenups Are Unbreakable
In Australia, we use Binding Financial Agreements (BFAs). If there was a failure to disclose assets, or if the agreement was executed under duress, the court has the power to set them aside under Section 90K.
The Role of an Accredited Specialist
As an Accredited Specialist, I have undergone rigorous testing beyond standard legal training. This expertise is vital in debunking myths about family law that could otherwise lead to disasters. We focus on practical, solution-oriented outcomes.
Understanding Child Support vs Parenting
These are two distinct legal silos. You cannot legally withhold access to a child because the other parent is behind on child support. One is a financial obligation managed by the Services Australia, while the other is a child’s right to a relationship.
Initial Contributions After Long Marriages
If you bought a house during a 2-year marriage, it is highly significant. If you brought it into a 30-year marriage, that initial contribution has usually been eroded by the myriad of other contributions made by both parties over the decades.
Fairness Is Subjective
People often confuse what is fair with what is equal. Family law is discretionary; what is fair for a family in the Gold Coast with three children may look very different from what is fair for a couple on the Sunshine Coast with no children and separate careers.
The Impact of Family Violence
While we are a no-fault system, family violence is a critical factor in parenting matters under Section 60CC(2)(b). The court prioritises the safety of the child and the carer, which can significantly alter the “standard” parenting arrangements.
Superannuation as an Asset
It is a myth that super is “off-limits.” Superannuation is considered an asset and may be divided between the parties. This is especially important for partners who may have taken time out of the workforce to raise children and have lower balances.
Verbal Agreements Are Binding
A “handshake deal” with your ex-partner is not legally enforceable. To ensure a settlement is final and prevents future claims, it must be formalised through Consent Orders or a Binding Financial Agreement.
Pets Are Family Members
Legally, pets are considered chattels (property). While we understand the emotional bond, the court rarely issues “visitation” orders for the family dog. They are typically allocated to one party as part of the overall property pool.
Secret Assets Can Stay Secret
The duty of full & frank disclosure is absolute. If a party is found to have hidden assets, the court can penalise them, reopen settled cases, or award a higher percentage of the known pool to the other party.
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Quick Divorces Do Not Exist
Australia does not have express divorces. You must have been separated for at least 12 months and 1 day before you can apply. However, you can (and should) start your property and parenting negotiations immediately upon separation.
Why Choose Aylward Game Solicitors?
At Aylward Game Solicitors, our nearly 80 years of cumulative experience tells us that “winning” usually means a fast, fair, and out-of-court settlement. Ian Field and the team focus on de-escalation rather than litigation.
Frequently Asked Questions (FAQs)
Is there an automatic 50/50 property split in Brisbane?
No. This is one of the top family law myths. Courts order a just and equitable split based on contributions and future needs.
Does the mother always get custody in Queensland?
No. One of many family law myths is gender bias. Courts prioritise the child’s best interests and safe, meaningful parental relationships.
Do I have to wait a year before starting a property settlement?
You do not. While you must wait 12 months to apply for a divorce, property settlements can begin immediately after separation. Ian Field recommends resolving financial matters early to protect your future assets from being included later.
Does cheating affect the final property payout?
In Australia’s no-fault system, infidelity generally has no legal impact on asset division. Unless the cheating involved wasting significant marital funds (wastage), the court focuses on contributions and future needs rather than the reasons for the breakdown.
Can my child decide who they live with at age 12?
No. Despite common family law myths, there is no set age. The court considers their maturity and views, but retains the final decision.
Are de facto couples entitled to the same rights as married ones?
Yes. Many Brisbane residents wrongly believe they have no claim without a marriage certificate. If you lived together for two years or have a child, you generally have the same property and parenting rights under Section 4AA.
Is separation under one roof a real legal status?
Yes. Debunking family law myths, you can be legally separated while cohabiting if you prove the domestic relationship has ended to the court.
Are pre-relationship assets and inheritances always protected?
This is a risky family law myths example. While initial assets are considered, they are often vitiated or balanced out in long marriages. Unless protected by a Binding Financial Agreement, these assets usually form part of the total divisible pool.
Can I withhold visitation if child support isn’t paid?
Parenting time & child support are treated as separate legal matters. Withholding a child as leverage for making a payment could be a grave error that harms your reputation in the eyes of the Federal Circuit and Family Court.
Do all family law cases in Brisbane end up in court?
Rarely. Over 90% of matters at Aylward Game Solicitors are settled through mediation or Consent Orders. Litigation is a last resort; our team prioritises dynamic, out-of-court resolutions to save you time, money, and emotional exhaustion.
Get Ahead with Expert Legal Guidance
Trust Aylward Game Solicitors to Navigate Your Legal Challenges
Conclusion
Don’t let “pub law” and hearsay derail your future. Whether you are in Brisbane, the Gold Coast, or the Sunshine Coast, the Accredited Specialist expertise of Ian Field and the team at Aylward Game Solicitors ensures your separation is governed by legal fact, not fiction. Protect your assets & your children’s best interests today. Contact Aylward Game Solicitors to schedule a consultation.
📞 Call us: 07 3236 0001
📧 Email: mail@aylwardgame.com.au
📍 Visit us: Level 4, 160 Edward St, Brisbane City
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