FACTS & FIGURES
MYTH BUSTERS BGM Family Lawyers are on hand to sort fact from fiction when it comes to family law matters.
MYTH 1:
FAMILY LAW is complex, as no two cases are the same, however, that doesn’t stop countless myths from circulating at barbeques everywhere. From who gets what after a separation to what constitutes a de facto relationship, these myths can add confusion to what is already an emotional time – so it’s important to set the record straight. The BGM Family Lawyers team has been dealing with scenarios like these for years. So, if you are concerned about an aspect of your family law situation, give them a call – chances are they’ve encountered that challenge before, and will be able to create an action plan to get you through it. bgm.legal | 07 5510 4808
WHEN A COUPLE SEPARATES, EACH PERSON AUTOMATICALLY GETS HALF THE ASSETS.
There is no 50/50 ‘rule’ when it comes to dividing assets, regardless of how long the relationship lasted. Nobody has an automatic entitlement – unless you’ve entered into a binding Financial Agreement specifying how your assets will be split should the relationship fail. Otherwise, outcomes depend on the specific facts and circumstances of your individual case. Courts work out what each party should receive by analysing each parties’ contribution to the relationship’s
asset pool – this assessment covers contributions of a financial nature, and to running a household and caring for children. The court also examines the circumstances of each party – their age and health; their incomes and earning capacities; and the ongoing responsibility for the care of children. In some cases, this process of reasoning will produce an equal outcome; in others, a just and equitable outcome will be something different.
MYTH 2: YOU NEED TO BE LIVING TOGETHER FOR SIX MONTHS TO BE A DE FACTO COUPLE. It is not true that you only need to live together for six months to be considered a de facto couple. The Family Law Act defines a de facto relationship as one between two people who’ve been living together on a ‘genuine domestic basis’. So, you can have a de facto relationship much earlier than six months. However, for a financial claim to be made in respect of that relationship, it has to carry on for at least two years – unless you have children together, or if you
make substantial contributions which it would be unfair to ignore (such as putting money into a property together), in which case that two-year rule goes out the window. It’s also theoretically possible for you to be considered as being in a de facto relationship, even if you don’t live together with your other half permanently. In those circumstances, the court will look at other factors such as how intermingled the relationship finances have been and whether the relationship has been ‘public’.
MYTH 3: YOU CAN KEEP AN ASSET BY TRANSFERRING IT TO A FRIEND OR FAMILY MEMBER. Not only is this myth false – but taking steps like this in an attempt to 'defeat' a property settlement claim by a partner could have negative consequences. If you transfer an asset, it isn’t automatically excluded from the asset pool – the court can reverse the transfer, so ownership of the asset comes back to you, or it can still regard the asset as yours, even though it’s held in the name of a family member or friend.
MYTH 4:
Remember the possibility that actions like this might be taken into account when it is determining the final property and/or financial settlement or determining responsibility for legal costs. If you need to transfer significant items of property after separation, get advice about whether consent should be sought first.
FUTURE INHERITANCES CAN BE DIVIDED IN A PROPERTY SETTLEMENT.
An inheritance which you haven’t received is not yet your ‘property’, so it can’t be divided. If you are listed as a beneficiary in a relative’s will, but that relative still has the capacity to change their will, your inheritance isn’t guaranteed, and it will likely be ignored in any property settlement. It’s more complicated when your relative loses the capacity to change their will – now, your inheritance
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becomes inevitable, so the court could take it into account. For example, your partner could receive an increased share of the asset pool – excluding the inheritance – to take into account that you have an inheritance coming your way. Any adjustment will depend on the size of the inheritance and its ratio to the relationship property pool.