Οι μεγαλύτεροι μύθοι για το διαζύγιο και το οικογενειακό δίκαιο στην Αυστραλία

Going through a divorce or separation is an incredibly emotionally challenging experience, but the myriad of common myths about family law can make them even more difficult and costly. 

In 2024, there were 47,216 divorces granted in Australia, and many of these separating couples made critical legal mistakes based on widespread misconceptions, which is why learning the truth behind these myths is such an essential part of protecting your rights and avoiding expensive legal pitfalls.

Going through a divorce and separation can be a stressful and confusing time, especially with some of the assumptions that get talked about as “facts” which are not always correct. Here are some of the most common myths that get thrown around: 

Property is Always Split 50/50

One of the most common misconceptions about Australian family law is that property will automatically be divided equally between former partners. However, under the Family Law Act 1975, courts follow a complex four-step process that takes many factors into consideration.

The court will first identify and assign value to all assets, liabilities and financial resources, before assessing each party’s contributions (both financial and non-financial) from the course of the relationship. Financial contributions include all income, as well as inheritances and gifts, whilst non-financial contributions could be things like home improvements, renovations and homemaking responsibilities.

The most important part of this process is the courts evaluating future needs, which takes factors into consideration such as age, health, income capacity, care of children and how long the relationship was. For example, a parent who has primary care of young children is likely to receive a larger property share so they can meet all their housing and support needs, whilst an older spouse with limited earning capacity might also require additional support.

This means property settlements regularly result in unequal divisions, especially in cases where one party may have reduced earning capacity due to years spent taking care of children.

Mothers Always Get Custody

There’s a widely held belief that mothers automatically receive custody, but this is outdated and incorrect. In fact, Australian family law has evolved significantly in recent years, and the historical maternal preference to focus entirely on “the best interests of the child” is no longer the case.

Recent statistics show that equal parenting time occurs in only 6-10% of families, whilst substantially shared care happens in 21% of cases. Although it is true that mothers provide primary care in the vast majority of arrangements, this is often a reflection of practical factors rather than gender bias.

Το Family Law Amendment Act came into effect in May 2024 and removed the presumption of equal shared parental responsibility, introducing new considerations focused on child safety and well-being instead. Courts will now take seven general factors into consideration, including the child’s safety, views, developmental needs and each parent’s capacity to provide care.

Fathers who are consistently involved in parenting their children and show cooperation and commitment to a clearly defined parenting plan have strong opportunities to secure meaningful time with them. The court’s priority is always to ensure children maintain safe, stable relationships with both parents wherever possible, regardless of gender.

Also read: Μετακόμιση μετά το διαζύγιο - Μπορώ να πάρω το παιδί μου μαζί μου;

Common Law Marriage Has the Same Rights

Many couples believe that living together for a certain period automatically grants them the same legal rights as married couples, but this isn’t actually true. Although de facto couples do have property rights under Australian law, these rights are significantly different from marriage in several key aspects.

Generally, de facto couples must have lived together for at least two years on a genuine domestic basis before they can claim any property rights. However, there are exceptions in cases where the couple has a child together, one party made significant contributions that would be a serious injustice to not take into account, or the relationship was registered under either state or territory law.

Crucially, de facto couples have only 12 months from the date of separation to file for property settlement, compared to two years for divorced couples. This shorter timeframe can cause devastating issues for former partners who wait too long to seek legal counsel.

It’s also important to keep in mind that, while the Family Law Act covers de facto property matters nationally, some aspects of de facto recognition differ between states.

You Can Deny Access Over Unpaid Child Support

A particularly dangerous misconception is that access to children can be withheld in the event the other parent fails to pay child support. Child support and parenting arrangements are completely separate legal matters which are administered under their own legislation.

The Family Law Act states that the time parents are allowed to spend with their children and financial obligations are independent things. Courts take a very dim view of custodial parents who refuse access against the terms of consent orders, regardless of whether child support has been paid.

To avoid incurring legal penalties, parents should pursue proper enforcement channels through Australia’s Child Support Agency rather than withholding access. The Child Support Agency has a range of power at its disposal to rectify these issues, including wage garnishment, intercepting tax refunds, deductions from government benefits and, in extreme cases, preventing the non-paying parent from leaving Australia.

Courts may take unpaid child support into account when making child-access decisions, but only if non-payment genuinely affects the child’s best interests, not as punishment for the other parent. Parents who deny access risk losing their own parenting time and facing contempt of court charges.

Adultery Affects Property Settlement

Contrary to popular belief, adultery or infidelity has no impact on property settlements in Australia. The Family Law Act 1975 introduced a no-fault divorce system, which means the reasons for the breakdown of a marriage have no bearing on either divorce or the division of property.

In these cases, courts will focus solely on contributions and future needs when dividing property, and not on moral judgements about the behaviour of either party. This means an unfaithful partner will not automatically receive less of the property pool due to their adultery.

However, it’s important to keep in mind that there are limited exceptions where conduct can affect the property pool financially. For example, if a spouse spent marital assets on their affair, such as expensive gifts, overseas trips or renting apartments for an affair partner, this might be considered “wasted” assets that lead to a reduction of their contribution to the marriage.

Similarly, if the infidelity involves financial misconduct like hiding assets with a lover or deliberately reducing the value of matrimonial property, the settlement may be reduced. These situations are rare and require clear evidence of financial waste.

Also read: Η άνοδος των γκρίζων διαζυγίων: Ζευγάρια μεγαλύτερης ηλικίας

Prenups Aren’t Enforceable

It’s a common misconception that prenuptial agreements (known as Binding Financial Agreements or BFAs in Australia) are not legally enforceable. Under the Family Law Act 1975, BFAs can be used to effectively determine property division and spousal maintenance.

However, BFAs must meet strict legal requirements to be valid. For example, both parties must receive independent legal advice from qualified Australian lawyers before signing one, with each lawyer providing a certificate confirming this advice was received by both parties. The agreements must also involve full financial disclosure from both parties and be entered into voluntarily and without coercion or misrepresentation of facts and figures.

Courts can disregard BFAs under specific circumstances, as explained in the Family Law Act, including when proper procedures weren’t followed, in cases involving fraud or duress, or when circumstances have changed dramatically since the signing of the original BFA, such as if one party becomes unable to support themselves due to illness or disability that wasn’t present when the agreement was signed.

Despite these requirements, properly drafted BFAs can provide stout protection and certainty for couples entering into a marriage. They’re particularly valuable when it comes to protecting existing assets, business interests and inheritances, and ensuring fairness in blended families or second marriages.

The Importance of Expert Legal Advice

It’s crucial to understand the differences between myth and fact when it comes to divorce and separation in Australia because it’s easy to end up making costly mistakes that affect your family’s future for years to come if you’re misinformed. 

Family law is complex and constantly evolving, with recent amendments in 2024 and 2025 changing how courts approach both parenting and property matters.

Every situation and family is unique, and what applies in one case may not apply to another. Getting early, expert legal advice ensures you understand your actual rights and obligations rather than relying on outdated information or well-meaning but incorrect advice from friends and family.

Your legal ally for life’s curveball moments: At Kingsford Lawyers, we provide responsive, understanding legal support when you need it most. Our experienced family law team can help you navigate separation and divorce with clarity and confidence, protecting your interests while focusing on practical solutions for your family’s future. Don’t let myths guide your most important legal decisions, contact us today on 1300 244 342 to discuss your situation with our team and find out how we can help you get a fair resolution.