There are many mistaken beliefs about property and financial entitlements on the breakdown of a relationship. These cause confusion and can make it difficult to reach a fair and just settlement. Some of the most common misconceptions are:

I'll lose my rights if I leave

Many people believe that the person who leaves the family home will lose rights to a share of the property. Behind this is the idea that whoever abandons the marriage or de facto relationship deserves nothing. This is wrong. Each person in the course of the marriage or de facto relationship has earned a share in the property and does not lose it simply because they decide it is no longer possible or desirable to remain in the house or the relationship.

I owned it before marriage, so it's mine!

Just because one person owned a property before the marriage or de facto relationship does not mean they will automatically have total rights to that property or its value when the relationship ends. The property will be considered a contribution by its owner, but over time it is assumed that both contributed directly and/or indirectly to its maintenance or improvement. In other words, the longer the marriage or de facto relationship, the less important pre-relationship contributions are in the final division of property.

I can keep inheritances and gifts

A former spouse or partner is not always entitled to keep gifts and inheritances from family. Generally there is little difference whether the gift was for one of them or both. In either case it will be seen as a contribution made on behalf of the person whose family made the gift. As with pre-relationship assets, the importance of gifts and inheritances decreases as they become mixed with other property and as the other person contributes directly or indirectly to their maintenance or improvement. Where the gift or inheritance was received shortly before the separation, the person who received it will have a good argument for receiving its full value in the division of property.

I worked hard for this business and it's mine

People who work hard during a marriage or de facto relationship to build up a business may consider the other person is not entitled to a share of it. They may claim that the other person never worked in the business or only worked as an ordinary employee and should only be paid the equivalent of wages. But where the other person has answered the telephones, arranged work for the business, kept the books or entertained business associates, the Court will consider this a contribution to the success of the business. Even if the other person has never worked in the business but instead cared for the house and children, this will be regarded as an indirect contribution by freeing them to put more time and effort into the business. Often the other person will have worked in another job to provide family income at times when the business was not as profitable and this too will be regarded as a contribution.

This does not mean that the business will have to be shared equally between them. The Court may still give greater weight to the person who made direct contributions to the business.

Women always get the best deal

What is often overlooked by those who make this statement is that women in a heterosexual relationship will often continue to be the primary carer of children and the amount they receive often needs to cover both themselves and the children of the relationship. In the short term this may mean that the actual amount awarded to a woman will be greater than their male partner, but studies here and overseas show that men do better in the long run. A man may have a greater income earning and borrowing capacity, particularly if he has not spent extended periods out of the workforce on parental leave. Without children to care for he is able to build quickly on his share of the property. A woman with children may be unwilling or unable to secure full-time employment. If she has been involved in full-time child care during the relationship, she may not have the necessary skills or recent experience to find a job that pays as well as her ex-partner's employment. A separated woman's capacity to support herself may be a long way below her former partner's and the Court will often give women marginally more than men to compensate for this and to meet the greater needs of women with children.

Naturally these considerations have less application to same-sex relationships, relationships without children, and modern heterosexual relationships in which child-rearing is shared.

If my partner receives legal aid I will not be able to

Eligibility for legal aid in family law matters is considered separately for each spouse or partner. One or both partners may be eligible for legal aid. Call 1300 366 424 during business hours for more information about applying for legal aid.