thatQuestions to ask a divorce lawyer
Here at Loukas Law we see clients who come from many walks of life. And as family lawyers it’s natural that we spend a fair bit of time debunking some common misconceptions that abound in family law. We’re going to save you some time by setting the record straight on the most common, and misunderstood, questions that anyone is likely to ask a divorce lawyer.
“What’s the difference between separation and divorce, and why does it matter?”
Put simply, all relationships that end will involve separation, but not all will require divorce. That’s to say that:
- Both de-facto and married couples must separate to end a relationship.
- Only married couples need an Order of Divorce to formally dissolve their relationship in the eyes of the law.
This distinction between divorce and separation is still important because:
- Time-limits will apply if you want to go through the family court to settle property issues, but they come into effect at different times for each type of relationship.
- Separation may not affect Wills, but divorces usually do. This will depend on the laws of a particular State or Territory, so it is crucial to seek additional legal advice if that is a concern for you. It’s wise practice not to delay a Will update!
“Does ‘equal shared parental responsibility’ means equal time with my children?”
Equal shared parental responsibility (or ‘ESPR’) and “equal time” do not actually mean the same thing. The time spent with a child is one of many aspects of parental responsibility generally, but ESPR refers to the starting point the court takes when deciding what’s in the best interests of a child.
ESPR means that Family Court will presume (unless proven that they should think otherwise) that it is in the best interests of a child for their parents to share equal decision-making capacity about major long-term decisions in their child’s life such as:
- medical matters;
- religious matters;
- cultural matters;
- education; and
- living arrangements.
Note that ESPR does not generally apply to smaller, day-to-day arrangements. However, circumstances can arise where it is not clear whether ESPR would apply or not because a dispute will erupt about whether it is a long-term or day-to-day arrangement. In these situations it is essential to seek specific advice from a family lawyer.
“I’ve been living with my partner for two years. Does that mean I’m entitled to half of the property pool?”
Not necessarily. Two years is more of a “rule of thumb” rather than a rule of law. According to the section 2F of Acts Interpretation Act, when considering whether an unmarried couple is in a de-facto relationship.
Various factors are considered, such as:
- the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- the care and support of children; and
- the reputation and public aspects of the relationship.
Therefore, a relationship is ‘de facto’ if, on balance, enough of these indicators are present. The balance of indicators should show that there is a relationship of significant commitment.
“Will my kids be taken away from me if I see a psychologist?”
This is another family law myth that no doubt comes from a misconception that you must be unfit or unwell if you need to see a psychologist or counsellor. However, seeing a mental health professional – like any medical professional – could equally be seen as evidence of insight into one’s own well-being.
The main consideration here is whether it is relevant to what is in the “best interests of child.”
“Does no bruise mean I can’t prove family violence in court?”
This is an important family law myth to address because, the Courts now acknowledge that family violence is more than just physical violence. The unfortunate reality is that we often see clients who do not realise they are in violent situations themselves. This is largely due to this limited understanding of what family violence actually is.
Far from just physically violent behaviour that causes visible injury, “family violence” also extends to behaviour that is coercing, controlling and/or causes fear to a member of your family. In the absence of of physical proof of injury, there are many other ways to demonstrate evidence of family violence. For example:
- Bank records that demonstrate one-sided patterns of economic behaviour may indicate economic violence.
- Expert evidence from psychologists, counsellors and other medical practitioners can be brought in as evidence of either the actual impact on you, or the likely impact of certain threatening types of behaviour.
- Conduct on social media can be used to support arguments that another person’s behaviour is threatening and likely to cause fear.
These questions are merely some of the most recurring ones we encounter. However, the information given here is only general in nature so think of it as the start of a conversation. Getting the right advice from an experienced family lawyer about your situation (and at the earliest possible stage) is crucial.