6 Family Law Myths
A fundamental key to understanding family law is deciphering fact from fiction, reality from myth. We’ve provided you with 6 common family law myths to better prepare you for how to handle them.
MYTH #1: IN FAMILY LAW CASES WHEN THE COUPLE NEEDS TO BE LEGALLY SEPARATED, THE CHILDREN WILL STAY WITH THE MOTHER.
While friends and family may warn you about this, it simply isn’t true. The Court is only guided by what is in the best interest of the child. The use of a shared care arrangement is likely if it is practical for, and not disruptive to the child. Generally, the Court will first look at who has been the primary care giver for the children (understanding that there are other factors and contingencies that must be weighed).
MYTH #2: IF A SPOUSE
HAS COMMITTED ADULTERY, IT WILL AFFECT THE FINANCIAL OUTCOME OF THE CASE.
The ‘fault’ cited in the divorce is of no relevance to the financial outcome of the case. The Court has to consider each individual’s needs, irrespective of fault. The only fault that bears financial consequences is if it is directly linked to the couple’s shared financial matters (e.g. gambling, reckless spending).
MYTH #3: “THE FATHER OF MY CHILD AND I WERE NEVER MARRIED BUT HIS NAME IS ON THE BIRTH CERTIFICATE SO LEGALLY, HE IS THE FATHER.”
In a heterosexual marriage, there is a presumption that the male spouse is the father of the female spouse’s child if the child was born during their marriage. However, if a child is born out of wedlock, paternity is only established by DNA testing or execution of an affidavit acknowledging paternity by the father.
Merely writing the “father’s” name on the child’s birth certificate does not establish that he is the legal father. This means that he has no legal rights to the child and unless paternity is established by appropriate means, child support cannot be collected from him and other rights of inheritance for the child are null and void.
Although having the father’s name on the birth certificate does not convey paternity, it may be used to aid in the presumption of paternity when attempting to do so in a court of law.
MYTH #4: “WE ARE MARRIED, THEREFORE I’M ENTITLED TO HALF OF EVERYTHING.”
While the starting point in cases is equality, the court weighs a number of factors when it decides how a couple’s assets should be divided. The most decisive factor (in most cases) is each party’s needs—especially the needs of the children. And in cases where the assets exceed the needs, the court may seek to make things more equitable by placing more weight on other factors; for example, the length of the marriage, contributions made, etc.
MYTH #5: “IT DOESN’T MATTER IF I TRANSFER ASSETS TO A THIRD PARTY—THE COURT WILL IGNORE THEM.”
This is not the case. In fact, the Court can either order the funds to be transferred back to the spouse or ‘add them back in’ to joint funds. Regardless, records will reflect the transfer and whom the assets rightfully belong to. Furthermore, transfers are likely to become common knowledge because both parties must provide full disclosures of their finances, including bank statements. The Court is likely to take a dim view of a party that has tried to conceal assets.
MYTH #6: “IF MY SPOUSE HAS RACKED UP HUGE AMOUNTS OF DEBT, I AM LIABLE FOR HALF OF THIS.”
The contractual position is that, despite being married, the debt is personal and therefore only attaches to the person who has the contract with the creditor (unless you are the guarantor). Consequently, the repayments are the responsibility of the spouse whose name they are in and if there are missed payments, it should only affect their credit.
It is important to point out, however, that unmanageable debt created by a bankrupt spouse can cause extenuating problems for you; for example, debts may be secured on your former spouse’s share of the property, causing your home to be at risk.
The matrimonial courts can look beyond contractual liability and will sometimes consider the debt to be “joint” when taking into consideration the finances—especially if both parties have somehow benefitted from the debt.