Busted: Seven divorce myths and misconceptions

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Relationships are yet another casualty of COVID-19, with divorce applications in 2020-2021 up 8% on the previous year, and separations in de facto relationships on the rise.

The stresses imposed by COVID-19, from the inescapability of lockdowns, financial issues and homeschooling, are likely to be inevitable triggers for this increase.

Alarmingly, Aussies may fall victim to common misconceptions about ending a relationship, which can often lead to unintended outcomes.

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Here, we debunk seven myths around separation and divorce.

1. "We are legally separated"

There is no actual process of legal separation from a partner in Australia, and it does not necessarily require one party to move out of a shared home.

There are sometimes circumstances where parties are separated but remain living under the one roof. Other than in exceptional circumstances, couples can only apply for a divorce after being separated for at least 12 months.

2. Getting divorced deals with property and parenting matters

A divorce doesn't actually deal with property settlement or parenting issues. A divorce is a standalone application to the court to legally terminate a marriage.

Dealing with parenting and property matters is a very separate process, and doesn't necessarily require an application to the court. These issues can be dealt with at any time either before or after a divorce, with time limits involved for property applications after divorce.

3. Property settlements are always 50/50

There is no pre-determined percentage when it comes to dividing a couple's assets in property settlements.

It will always depend on individual circumstances.

4. Whoever gets the kids will get more

This is not always the case.

As above, the division of assets will depend on individual circumstances and is subject to many factors which may include the value of assets, financial and non-financial contributions made by each of the parties, the length of the relationship, each person's income earning capacity, and their kids' ages.

5. Pre-nups are worthless

Pre-nuptial agreements, or financial agreements as they are known in Australia, are definitely not worthless. They're a very important tool in assisting couples to work out the division of their assets should they one day go their separate ways.

These sorts of agreements are particularly useful in second and later relationships where parties have accumulated their own wealth or have children to previous relationships. If prepared properly, a financial agreement will usually hold up when challenged.

6. Kids can decide where they want to live when they turn 14 

There is no fixed age when a child is able to decide where they want to live, and whether or not they want to see one parent or the other. The court will make orders it thinks are in a child's best interests until they turn 18, taking into account all of the circumstances.

A child's view is just one of the factors to be taken into account and will depend on the child's maturity and level of understanding.

7. Getting a lawyer means going to court

Engaging a lawyer doesn't necessarily mean going to court.

In fact, lawyers are required to do everything they can to exhaust all opportunities to resolve your matter before taking it before a court. There will be circumstances, however, where a court application is the most efficient and cost-effective way to deal with a dispute.

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Josephine Sergi is the head of family law at Kalus Kenny Intelex. She has more than 15 years' experience in family law both as a lawyer and paralegal. Josephine holds a Bachelor of Laws (Honours), Graduate Diploma of Legal Practice and Masters of Applied Law (Family Law). She is a member of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia, Victorian Women Lawyers, the Australian Italian Lawyers Association, and ALTO - Australian-Italian Leaders of Tomorrow. She is also a contributing author of the Australian chapter of the Lexology Private Clients Guide.

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