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Listen: Busting common separation and divorce myths

  • Summary
  • Transcript
(35 minutes)

We chat with Rebecca Dahl, partner at Nicholes Family Lawyers, about 10 common family law myths.

True or false?

  • If you leave the family home, you’ll lose your share in the property.
  • If you’re still living together, you can’t be separated.
  • ‘I put the money in and so I should get the money back.’

Do you need help sorting family law fact from fiction?

Our 5-minute Q&A can help connect you with experts like Rebecca to guide you through the maze.

Rebecca and Nicholes Family Lawyers are professionals in our network. They’ve signed our Ethical Charter.

We’ve done our best to transcribe this podcast. However, the audio is the most accurate version! 

Jack Whelan, Barrister and Mediator

I am joined by one of Australia’s experts in family law, the rather famous Rebecca Dahl from Nicholes Family Lawyers.

Thanks for joining us. Now, I say rather famous because your fame precedes you, whether it’s chicks talking footy, The Bench, or family matters, you are accustomed to sharing your wisdom with the population.

Rebecca Dahl

I am. I am. I’m very lucky to be part of a number of radio shows on Joy 94.9. So that’s right. No stranger to having a chat.

Jack Whelan

Well, that’s a great thing because we’re in good hands and all those people, and it’s about 5,000 users a month now, which is fantastic, who are going through The Separation Guide will have a chance to listen to an expert with plenty of experience in all matters podcasting.

So Rebecca let’s get into it. The topic for today is mythbusting and there’s plenty of myths in family law.

You and I, in preparation for today, have settled on ten. We probably could have settled on about a hundred really, but ten’s a good start.

Rebecca Dahl

I was going to say Jack. I think as a family Lawyer, a lot of our jobs, particularly when we first see clients, is mythbusting.

I think family law is one of those things that, you know, lots of people, their neighbour went through it or their cousin went through it, or they read about someone in the paper and people have all sorts of preconceived ideas about it.

And I often find, when I have initial sort of conversations with clients at least, a lot of it is really about busting those myths and explaining to them what’s really relevant to them.

Jack Whelan

It’s interesting isn’t it that often the preconceptions can be correct, but often they’re incorrect and sometimes it can be hard to disavow someone of a misapprehension.

Do you find that you spend a lot of time having to correct misapprehensions that people have because a very well-intentioned girlfriend, boyfriend, family friend, might be passing on information, which is again, well-intentioned, but perhaps not entirely relevant to this person’s fact scenario.

Rebecca Dahl

That’s exactly right. And look what I always say to people that every single family is different. And in that way, every single family law matter is different.

Yes. We’ve got the same law that everyone follows, but no-one’s two set of circumstances are the same. So you really need to understand what’s specific to you in your situation.

Separation myth #1: Engaging a Lawyer means you’ll end up in Court

Jack Whelan

All right, let’s get cracking. Now. I’m going to put a series of propositions to you, myths if you like, and I’m going to ask you if they’re true or false.

And then I’ll also ask you to share your expertise in relation to them. So let’s talk about myth number one.

If I, Rebecca Dahl, of Nicholes Family Lawyers, if I engage a Lawyer, this means that I am going to Court, true or false?

Rebecca Dahl

False. Well, maybe. Look, the reality is that, you know, all Lawyers, we can go to Court, we know how to litigate. We’re very skilled at it. But the reality is most Family Lawyers are really committed to Court being the last resort.

I mean, there’s the Court’s there because we need it.

The Court is there as a last resort for people that can’t agree.

And, and also for, you know, urgent things, you know, people are trying to abduct children overseas or dispose of assets. Absolutely. But the reality is, as Lawyers, we’ve got a real, you know, arsenal of other options at our disposal in terms of dispute resolution.

And I think often when people separate, you know, if their ex-partner’s gone to see a Lawyer, they might get nervous and say, ‘Oh God, that means we’re going to end up in Court for years and pay thousands of dollars’.

But, the reality is, often people go to see a Lawyer just for information. You know, I have lots of people that come to see me to get some information, get equipped, and then they can go back and have a conversation with their ex-partner and try and come to a resolution or we can help them with engaging in mediation or arbitration or any of these sort of options we’ve got.

Jack Whelan

Hmm. So the horror stories, which we all hear, and we all seem to know someone who’s experienced the horror stories — two years to get to Court and a hundred thousand dollars in fees later — tends to be the exception rather than the norm.

Rebecca Dahl

Exactly. But no-one’s going to sit next to someone at a dinner party and say, ‘I’m going to tell you about this lovely day that my ex-wife and I agreed to some Consent Orders and we all went on with our lives happily’. No-one’s going to tell you that are they?

Jack Whelan

That’d be nice. That very very rarely happens.

Rebecca Dahl

I guess the other thing is Jack, just on that, that even the Court, you know, encourages people to try and mediate things.

You can’t even go to Court about parenting unless you’ve tried mediation and, and even with property matters, the Court encourages mediation as well.

So, yeah, there, there’s lots of opportunities there to settle without going to Court.

Jack Whelan

What do you think? And that’s absolutely true. Why do you think therefore that there is such a misconception. Why do you think this myth is so prevalent?

In many ways it feels as if the profession, perhaps the Courts have a bit of an image issue, a little bit of a comms issue in many ways that’s why we’re doing things like this podcast to try and educate people in how it actually works.

Rebecca Dahl

I think that’s right. People have a certain idea about Lawyers, you know, people watch Suits or whatever they watch and they think, you know, Lawyers spend all day in Court.

I think the other thing is that resolving things nicely isn’t that sexy. You know, as I said people tell the exciting stories, but I think you’re right. I think it’s important that those of us in the legal profession are helping to get that out as well.

Separation myth #2: A stay-at-home parent isn’t entitled to anything in a property settlement


Jack Whelan

Well, as a member of the Bar, I can assure anyone listening that it’s nothing like Suits..

Alright, myth number two, Rebecca.

If I’m a stay-at-home mum or dad, I am not entitled to anything in a property settlement in the event that I divorce my partner, true or false Rebecca?

Rebecca Dahl

That’s another one that’s false Jack. And I have to tell you, this is actually a myth that I often enjoy getting to bust for people because I’ll often find that people come to see me who are a stay-at-home mum or dad.

And whether that’s something their partner’s told them or just something they’ve come to believe. They just believe that because they weren’t out earning the money, they’re not entitled to money when they separate.

But the reality is this. When a Court’s determining a property settlement or when Lawyers are negotiating a property settlement, there’s lots of things that we look at.

Absolutely, we look at financial contributions, but we also look at non-financial contributions. So contributions as a parent or a homemaker and The Family Law Act is really clear that those contributions are effectively in most cases equal to going out and earning an income.

So it’s absolutely not the case that if you’ve been the stay-at-home parent, then you’re not going to benefit in the event that you separate.

Separation myth #3: 50/50 is always fair in family law

Jack Whelan

Okay. So let’s talk about that. Let’s talk about contributions, and financial and nonfinancial and what contributes to a fair outcome.

But let’s put it in the context of another myth. Myth number three.
Rebecca, 50/50 is fair in terms of property split. 50/50 is fair in life and so it’s fair in law.

We have been brought up to believe that fairness was 50/50. So it must be the case that fairness is 50/50 in family law, true or false Rebecca?

Rebecca Dahl

Another false one, Jack. Hopefully we get to a true one eventually.

Well, we might be doing our job then if we’re busting all the myths.

Look, the reality is this. There’s no automatic presumption that there should be an equal split of assets when there’s a separation.

I have to say that that really is a myth that a lot of people have that, you know, if they’ve been together for a certain amount of time, that they will automatically get 50/50. But when we’re deciding what people get, there’s a lot things we look at.

You know, I touched on before the contributions, during the relationship, we also look at what we call future factors.

So what people are going to need in the future. So the income, care of children, all those sorts of things. And look, the reality is in some cases it is a 50/50 division because of weighing up all those contributions and future needs.

But it’s absolutely not a case where it’s automatically 50/50 or that’s even the starting point to be realistic. It’s really dependent on how all those factors weigh out. It’s not a science.

Unfortunately we don’t have a computer where we can just type in, you know, contributions and that sort of thing. But, yeah, 50/50 is, it is fair in some cases, but in the majority of cases, you’re going to get something different.

Jack Whelan

It’s not even really a formula, is it? It’s really a set of principles.

It’s the case, isn’t it, that many Judges even refer to it as the crystal ball looking into the crystal ball. So it is, it is inexact, but it also, at the same time, it makes sense. Doesn’t it?

Rebecca Dahl

It really does.

I often say to people, you know, looking at contributions is like looking in the rear vision mirror of your relationship.

And then we got to look at absolutely, like you said, the crystal ball and the forward factors and see, but look, I think it’s a good assessment.

I know there’s some States in America where, you know, 50/50 is the presumption after a certain amount of time or whatever it is. And I think what that does is really, you know, it doesn’t help people and isn’t necessarily gonna get to a fair outcome because there’s no assessment of what realistically is the situation and how they got to where they are.

Jack Whelan

Yeah. It’s one of those things that when you think about it, the more you think about it, the less it makes sense.

What I mean by that is when you, when you really think about it carefully, think about sacrifices that say a non-primary breadwinner has made over the years. They haven’t accumulated super, their career hasn’t advanced, so forth. The idea that a 50/50 split would be fair would be to accept the proposition that it’s okay for that person to really start behind the eight ball as they reset after their separation.

So when you really do think about it clearly, and I think most people, when they think about it, clearly they come around to the idea that, you know, what, 50/50 is probably rarely a fair outcome.

Rebecca Dahl

That’s right, because it’s going to be a pretty individualised and pretty uncommon situation where your contributions are exactly the same and your future factors are exactly the same.

In most relationships there’s going to be some variation on one side of those things.

Separation myth #4: ‘I put the money in, so I should get the money back’

Jack Whelan

And related to that, let’s move on to our next myth. It is related to this.

This is certainly a myth, but I find — I’m very interested in your experiences as well — I find that this can be a very hard thing to disavow someone of. There’s a fair bit of education in it, but let’s talk about the myth.

And it says, Rebecca, I put the money in and so I should get the money back. True or false?

Rebecca Dahl

Yeah, false again.

I think that that is an absolutely difficult one for people, because I think people, you know, start from a point where they say, well, this is what I put in. So this is what I should get out.

But as we’ve sort of talked about already, the way that property settlements are looked at is much broader than that.

You know, we’re taking into account a myriad of factors across, in often cases, a lengthy relationship.

And to just say, ‘I get in what I put out’, is really the same theory around saying, ‘well, if I’m the breadwinner, then I’m the only one that’s going to benefit financially out of this’.

Absolutely, you know, if someone put in a significant amount of money, say at the start of the relationship, or they got an inheritance or a gift from their family, they’re absolutely going to get credit for that.

But the Court’s not going to do a dollar for dollar accounting assessment and say, you know, Jack, well you put in $16,000 and Bec you put in $30,000. So you’ll both get that back exactly. That’s just one factor amongst all these other things that we’ve been talking about.

Jack Whelan

And Rebecca, you mentioned, say inheritance or a deposit on a home and timing.

How important is the timing of a contribution in respect of trying to figure out what has been put in and then what comes back at the other end of that?

Rebecca Dahl

Yeah look, the timing is important and I guess it’s sort of the timing and the impact.

So if someone’s, you know, they’ve had a 20-year relationship and someone had $10,000, you know, at the start of that relationship, it’s not gonna make a hell of a lot of difference because what I often say is it’s sort of like unscrambling an egg, you know, we don’t, we don’t know where that money’s come from. We can’t work out really what the impact of it was.

Whereas if we’d had say, you and I Jack, a two-year relationship. It’s over now. We’d had a two-year relationship and you got a million-dollar inheritance six months before we separated.

Then obviously that’s going to be a hell of a lot more of an impact because it was, we know when it was, there wasn’t time for it to dissipate for want of a better word. And the impact on the property pool is much different. So that timing really is important. Contributions tend to be weighted more the more recent they were.

Jack Whelan

And the legal principle there is, it’s erosion, isn’t it?

And the idea is that, as you say, contributions made at the start of, let’s say a 20-year marriage — bear in mind that the average length of marriage in Australia is only 13 years these days — so 20 years would be a pretty long marriage.

And the value of those initial inputs can erode over time in the way, to use your reference: the ingredients go into the egg, which is a marriage and contributions, financial and non-financial, they ebb and they they flow, such that after 20 years, it is very, very difficult (unless you were to spend a three-year forensic accounting exercise) to try and unscramble those ingredients.

I suppose that there’s really two messages in that, isn’t there Rebecca?

There’s the timing of contributions is important, but also just as a real pearl of wisdom, trying to unscramble the egg, the Courts will rarely do it in a forensic way.

It tends to be a false positive for couples doesn’t it, trying to do that?

Rebecca Dahl

Correct. And I think what it does is really, you know, dismisses that myriad contributions that we’re looking at. It’s not just ever one factor and it’s not just ever that financial factor.

So, you know, one person may have put in more money, but one person may have put in more contributions as a homemaker, or they might be a landscape gardener, and they’ve done the garden on the property. You know, there’s all these sorts of things that get considered.

Jack Whelan

And in a contested case, in a litigated environment, they are the sorts of things in which evidence is led aren’t they?

Rebecca Dahl

Absolutely, they are. Absolutely they are.

And, you know, in quite precise detail, in a lot of cases, too, you know, and I’ve had some cases that have been hard fought over things like, exactly that, renovations and those sorts of things. And, you know, there’s been evidence from relatives who saw people doing renovations.

There’s been evidence from experts who’ve said, well, if you had to employ this person, that’s what you’d pay. So yeah, look, it’s, these things can be quite, quite intensely litigated where they need to be.

Jack Whelan

That’s crucial, isn’t it. And really one of the points that certainly that I’d make, and it’s open to you to make the same point is that, and you referenced this earlier on. The Courts actually are there for a reason.

And, some matters do require litigation. Some matters do require to have a light shone on them in the interests of justice. So whilst you and I would speak often about the benefits associated with alternate dispute resolution and resolving things by negotiation or mediation, the reality is that there will be matters where justice actually demands that the public Court system is accessed and used.

Rebecca Dahl

I think the Court exists for a really important reason.

You know, it exists, I guess, at a most basic level when people can’t agree, then someone’s got to make a decision, whether that’s about finances or children, and that’s a Judge, but then also we have to think about, you know, often there’s a, there’s an imbalance of power between couples and negotiation just wouldn’t be an option for them.

You know, circumstances of family violence, all those sorts of things. I think the Court plays a really important role in making decisions where it’s necessary for sure.

Jack Whelan

Absolutely. And it’s also a great regulator of behaviour before Courts are even contemplated, especially in relation to disclosure.

I think a message for anybody who’s listening is that if anyone thinks that they can actually get away, as some people do, most don’t, but some do, that they can actually get away with not disclosing their true financial position, your financial position one way or another will be made known to the other party throughout the course of negotiations or ultimately in a litigated environment.

Rebecca Dahl

Exactly right. And II think that’s the other reason, like you say, Court can be really important is that sometimes the avenues of asking nicely are exhausted. And we need that hammer of the Court to force people to disclose or give information they might not otherwise be doing.

Jack Whelan

It’s a good, and part of this is in The Separation Guide Q&A, which obviously helps educate and triage and connect people to the right services.

But if there is a power imbalance, and if there is a lack of transparency around where the money is, then it’s probably a good rule of thumb that if those things exist then the process needs to be more formal, what’s your view on that proposition?

Rebecca Dahl

I think that’s right. And I mean, look, the other thing is often I say to my clients that the good thing about Court is it puts boundaries and timelines, because I think that sometimes, you know, people can, you know, kill a lot of trees. I always say sending letters back and forth, but the Court can serve a really important purpose in terms of, like I say, putting boundaries around behaviour, putting timelines on things.

And, you know, a lot of cases settle really early in that Court process, but at least people are forced to behave in a way that means that we’re going to get to an outcome.

Separation myth #5: Financial contributions are more important than non-financial ones

Jack Whelan

Yeah, absolutely right. All right. Back onto our myths.

Four down, six to go, we’ve touched on this, but we’ll probably deal with this one fairly briefly.

Rebecca, financial contributions are more important than non-financial contributions in the law, true or false?

Rebecca Dahl

False. False.

And I think we’ve really talked about that and that’s taking into account, you know what I said before about, you know, if you’re the stay-at-home parent, then your contributions are equally just as important in the majority of cases to the person going out and doing work.

And I think there’s a case that really mentioned this and that’s the case of Brett Whiteley, the artist, whose wife was found to have made significant contributions because she made contributions by way of artistic inspiration and intellectual critique.

So I think that’s just a case I was thinking of that really highlights that, yes Brett was the one doing the painting and making the money, but his wife’s non-financial contributions were part of why they had those assets to begin with.

Jack Whelan

Absolutely. We’ve touched on this already. The law can get a bad rap from time to time, perhaps there are reasons for that, but this. It’s not really an equalisation, but this tendency towards equalisation of financial and non-financial contributions, that’s just good law.

Rebecca Dahl

I agree.

Separation myth #6: I can’t be separated from my partner if we’re still living together…

Jack Whelan

It says a lot about a country that would actually have that type of law in place.

Our next myth. And this is, this is really commonplace. Indeed. It’s more than a myth. It’s something that people will put to you as an assertion without realising that it may be inaccurate.

Rebecca, I’m not separated from my partner if we are still living together, true or false?

Rebecca Dahl

False.

Well, look, the reality is this, that some people may well have been separated and still continue to live together.

It’s not uncommon for people with children who separate and, you know, think, well, we’ll stay in the same house till the kids have finished the school year or whatever it is. The other side of that coin is that there are some people who are married or in de facto relationships and they never live together because of work or, you know, other situations.

And I guess the extreme example of that is, you know, there’s been cases where people have been living with a spouse and then had a second partner that they’d been found to be in a de facto relationship with. They weren’t living with both of them.

So look, separation’s not just physical. It’s really about the intention behind what people are doing.

Are they intending to separate? And there being, I guess, a substantive difference in the nature of their relationship post that separation.

And, and we have a lot of cases, you know, where people have had to litigate over the date of their separation. In some cases, look, it doesn’t matter if you think it’s August. And I think it’s September.

But we’ve got cases where people’s views of when they separate vary by years. And that can be really important. For example, you know, someone might get that big inheritance after someone says they’ve been separated for three years.

So it can be a really vexed issue for people. And yeah, as I say, there’s a lot of cases fought over that, particularly when people are looking to get divorced, because you need to obviously be separated for 12 months to get divorced.

Often, you know, we find one party or file an application for divorce and the other one will come back and say, hang on, we haven’t been separated for 12 months. We’ve only been separated for two months or whatever it might be.

Jack Whelan

Yeah, absolutely. And there’s also the really extreme example of the reality of a pandemic, in which people were forced by government policy largely to separate and to a large extent remain under the same roof.

So I suppose the message is, that you can be under the same roof and separated in the eyes of the family law.

Rebecca Dahl

And you can be not under the same roof and still together!

Separation myth #7: If I leave, I’ll lose my rights to the house in any settlement


Jack Whelan

Correct. Correct. And again, it’s one of those things when you really think about it, it makes more sense than it does at first blush.

Okay. So this is related to that. I hear this a lot as well. This is a common myth. Rebecca, if I leave the house, I lose my rights to the house in any settlement, true or false?

Rebecca Dahl

False. And I say it with some intensity Jack, because it’s something that people say to me all the time, whether they’re the person in the house or not.

I think that there’s a lot of urban myths in family law. And I think this is one of them.

Because it’s just not the case. Possession is not nine-tenths of the law. You don’t get the house just because you’re in it.

And I think the other thing is that that misconception can force people to continue living together when it’s not a safe situation, or it’s not a pleasant situation, because people think, ‘Oh God, I can’t leave the house because I won’t get a share of it’. And they might, as I say, be subject to violence or even just an unpleasant situation.

The reality is that the house is an asset like anything else and the determination of who gets it is going to be based on all those factors we’ve talked about a few times now. But yeah, it’s absolutely not a case of you have to be stuck in the house.

Jack Whelan

Exactly. It’s really important. And I will say to people, look, if it’s an unpleasant environment and the relationship is served, and if there is some unpleasantness, that unpleasantness is de-escalated by someone doing the sensible thing and going to stay somewhere else for a while.

You won’t be punished for making that judgment. You will not be punished for making that judgment.

Because that’s part of the fear that drives people to staying when they probably – it’s in everyone’s interests – that they make alternate arrangements, if they can.

Rebecca Dahl

Absolutely. Yeah. And I think it can be a real relief to people to find that out that, you know, just because they’ve left to make it a nicer way to live for everyone, they’re not going to lose their entitlement to their house.

Jack Whelan

And it’s interesting as well. Often just a little bit of space can actually improve the character of the negotiations as well.

Rebecca Dahl

And that’s advice I often give to people, Jack is, you know, it’s very hard to try and negotiate with someone who’s in the next wall to you.

You know, people need to have their space to try and work out what they want to do and where they want to be. And I agree if it’s going to de-escalate conflict, particularly if there’s kids, but even if there’s not, it’s not a bad thing for one person to be able to leave the house.

Separation myth #8: If I’m in a de facto relationship, my interest in the property won’t be recognised

Jack Whelan

Absolutely. Alright. Three to go. Our next one, myth number eight.

If I live with my partner in a de facto arrangement, Rebecca, my interest in any property will not be recognised in the event that we divorce, true or false?

Rebecca Dahl

False. I think they’re all false Jack. I don’t think I’m going to get to tell you anything’s true.

Jack Whelan

I think the format of my questions has made this a little bit challenging for you, Rebecca, but the information is terrific.

Rebecca Dahl

That’s right. Well, no, the reality is this, Jack. The way the law is in Australia at the moment, and there’s been different iterations over the years in terms of de facto relationships, initially there wasn’t, you know, an opportunity to make a claim.

And then there was state-based legislation that was a bit different in every state, but the reality is, for all intents and purposes now, there’s a fair harmonisation of the law that means that if you’re in a de facto relationship, effectively you’ve got the same rights to make a claim for property settlement as married couples and it will be going through those same factors of contributions and your future needs.

I think the challenge with de facto couples is that, obviously when you’re married, you’ve got a marriage certificate that says you’re married, whereas often with a de facto relationship, it can be a bit less clear cut, in terms of, you know, when relationships started and even ended.

And, you know, I’ve had cases where one person said ‘oh no, we were just friends’ or ‘we were just flatmates’ and the other person said, ‘well, hang on. No, we’re in a serious de facto relationship for these years’.

And there’s factors in The Family Law Act that we look at to see whether people were in a relationship or a de facto relationship. But it can be quite complicated.

And it’s one area where, until we had the changing law about same-sex marriage, that’s been a real issue for a lot of de facto same-sex couples who couldn’t even get married. And so, you know, didn’t have those same options, but look for all intents and purposes now, if you’re in a de facto relationship, your property settlement is going to be looked at the same way as if you were married,

Jack Whelan

Terrific. Two to go, let’s talk tax. Then we’re going to talk children.

Rebecca Dahl

All the big issues.

Separation myth #9: If I transfer the property title, I need to pay tax on the change of ownership…

Jack Whelan

This is probably more important than people realise and tends to create some relief once people understand it so true or false, in a separation agreement where a property changes hands (houses or shares or whatever), do I have to pay tax on the transfer of the title, true or false?

I’ll rephrase that: ‘I must pay tax and transfer on that title’ True or false?

Rebecca Dahl

False. So, obviously normally there are taxes that apply in the change of ownership of assets, but when we’re dealing with assets changing hands in family law settlements, there’s often rollover relief.

So, for example, if you’re transferring a property from one spouse to another pursuant to a Court Order or a binding financial agreement, you’re not going to have to pay the rollover, you’ve got the rollover relief and with the CGT (Capital Gains Tax) as well, the CGT effectively rolls over to the party that’s taking the asset.

So if you’ve got a house that’s, subject to CGT and, and I’m giving you the house Jack now separation, you’ll have the cost base and the capital gain or loss when you dispose of it, rather than when I’m transferring it to you.

Separation myth #10: The care of children will be a 50/50 arrangement

Jack Whelan

Again, the tax office tends to get a bad rap, law tends to get a bad rap. That’s more examples of actually good law, and sensible provisions because people are under enough pressure.

And to be able to just make it sure that any possibly double taxation, uh, could actually occur, uh, that that’s removed, in this context is actually very welcome. So to our friends at the ATO, good job now.

Now, number 10 Rebecca and I feel like I really didn’t need to go to law school, I should have just spoken to you. And I could’ve knocked out my law degree in 10 easy steps.

Now, the final one relates to kids. And of course we probably should have started with the kids because in matters family law the interests of the kids come first, which is again, good law, important law.

And also, I know that when I have a chat with parents about that reality, that’s also a good behavioural regulator.

Most people are pretty good and they will put the interests of the kids first, but some others do need to be advised of that. Our final myth: In the event that I divorce my partner, the care of my children will be split between us 50/50…true or false?

Rebecca Dahl

You’re 10 out of 10 Jack. It’s another false with that one.

Look, this is another, I would say one of the family law, urban myths, and I think this sort of came about in 2006, there were some changes to the Family Law Act that were I guess aimed at getting people to share parenting a little bit more and share parenting responsibilities.

And a lot of people took out of that, that it was automatically a 50/50 arrangement. The case is that that’s actually not correct.

There’s two types of orders that are made about children. One is parental responsibility, which is, who has responsibility for children for their long-term care and welfare. So, you know, medical, education, those sorts of things, and ideally parents share those responsibilities. Not always.

But the reality is if parents have that equal, shared parental responsibility, then a Court’s obliged to consider equal time.

And I’m putting some emphasis on those words, because I think sometimes people do think that, you know, if there’s equal, shared parental responsibility, there’s automatically equal time. It’s not the case.

Judges make decisions based on what’s in the best interests of a child.

And as I said at the start, every child is different. Every family’s different, every child’s experience is different. Every parent’s arrangements are different.

And again, much like with the property, there’s no formula that says kids should be with Mums this number of nights and Dads this number of nights or grandparents, whatever it is.

It’s really about deciding what’s in the best interests of children. And look, for some kids that will be being 50/50 with each of their parents. But it’s absolutely not the starting point or an automatic assumption.

Jack Whelan

Rebecca, thank you so much for your contributions to the podcast.

We’ve touched on some really, really important things. We’ve tried to be conversational in it because the subject matter is very, very heavy.

But the information which you provided is priceless. Thank you for it. Thank you for being a member of The Separation Guide, and strength to your arm and the arm of Nicholes Family Lawyers as you try to help people through a really, really difficult time.

And of course, any association with yourselves and your firm will make that difficult time a little bit easier. So thank you again and all power to you.

Rebecca Dahl

Thanks so much, Jack. Thanks for having me.

Rebecca Dahl

Nicholes Family Lawyers

Rebecca is partner at Nicholes Family Lawyers. She practises exclusively in family law and has a particular interest in complex children’s matters. She has extensive experience in working with clients experiencing family violence, and helping people navigate the Intervention Order process. In addition, she specialises in family law for the LGBTIQA+ community (including egg and sperm donation agreements and co parenting agreements) and was a finalist in the Straight Ally of the Year Category at the Globe Community Awards.