Family Law: Give me half of everything, including the kids. Is an equal outcome a fair outcome?
In the early stages of separation and divorce, the phrases ‘fair’, ‘equal’ and ‘half’ are often thrown around, with little consideration for the underlying legislative pathway which governs relationship breakdowns in Western Australia. We explore below, some of the top misconceptions encountered when advising our clients on property settlements and parenting arrangements, including what the notion of ‘fair’ actually looks like.
Can my ex get half of my superannuation?
There is no underlying rule or presumption that states that upon the breakdown of a marriage, a person will be entitled to half of their spouses’ superannuation.
When considering each person’s entitlements, the Family Court uses a four-stage legislative process.
- Stage 1: requires the Court to identify the assets, liabilities and financial resources of the parties. A value needs to be identified for each asset, liability and financial resource.
- Stage 2: requires the Court to identify the financial and non–financial contributions, and contributions as homemaker and parent.
- Stage 3: requires the Court to identify and assess the “future needs” or “future financial circumstances of the parties” as set out in section 75(2) of the Family Law Act 1975, which includes factors such as the earning capacity of the parties, the level of care that either party has of the children or other dependents and superannuation entitlements.
- Stage 4 is the final stage and involves considering the effect of the above stages and looking at what orders are “just and equitable”.
In most circumstances, it will be appropriate to identify each parties’ entitlements in percentage figures. Dependent on the assets and liabilities available for distribution, it may be appropriate that a superannuation split in line with the overall entitlements of each party is effected.
Currently it is only married couples in Western Australian that can split superannuation. For more information about superannuation splitting laws for de facto couples living in Western Australia, please refer to our former article on superannuation and defacto couples.
But my ex cheated on me, surely that means they get less?
Infidelity is not a factor taken into consideration when assessing entitlements for a property settlement. It is important that you do not allow your approach to your settlement to be driven by attributing fault and blame. If this occurs, you run the risk of overlooking important factors whilst causing delay and the incurrence of further financial expenses.
Can my ex get our kids half of the time?
Unlike property settlements, when considering parenting arrangements, the phrases ‘fair’, ‘equal’ and ‘half’ should be removed from all dialogue, and instead replaced with the term, best interests of the child. When considering parenting arrangements, the mindset needs to shift from a parent’s entitlements, to the children’s entitlements, some of which include an entitlement to be protected from harm and an entitlement to have a meaningful relationship with both parents. Of course, the need to be protected from harm will always trump the right to a meaningful relationship, where the risk is so high that it can not be removed or managed appropriately.
Section 65DAA of the Family Law Act 1975, sets out the legislative pathway which should be used for determining parenting arrangements, in circumstances where the parties have equal shared parental responsibility for the child. Equal shared parental responsibility requires both parents to confer and consult one another when making long-term decisions about the children, including decisions in relation to medical treatment, living arrangements, religion and schooling arrangements.
- Stage 1: requires the Court to consider whether a child spending equal time with each of the parents would be in the best interests of the child, and further, whether it is practicable.
- Stage 2: in the event that the Court does not make an order for equal time, then the Court must consider whether the child spending significant and substantial care with the non-primary carer is in the child’s best interest, and further whether it is practicable. For further information about what is substantial and significant time, please see [insert ZR’s previous article of S&S time].
- Stage 3: if neither equal nor substantial and significant time is in the best interests of the child, then the Court may make other Orders in line with the best interests of the child.
Relevant examples of practical considerations include:
- The level of dependence that the child has on a primary carer (eg are they being exclusively breastfed?)
- The living arrangements for both parents (eg do the parties live within a reasonable distance of one another?)
- The work rosters for each parent? (eg is either parent a fly-in-fly out or roster worker?)
When commencing negotiations with your ex-spouse, it is important that you know where you stand in relation to the relevant legislation and your entitlements. Want to know our biggest tip? It’s simple. Get legal advice and get it early. This puts in you in the best stead to negotiate a just and equitable property settlement and parenting arrangements which are in the best interests of your children.
If you require tailored legal advice, please feel free to get in contact with one of our Family Lawyers.
About the authors:
Zoe Rosman is a Perth lawyer and was admitted as a solicitor of the Supreme Court of Western Australia in 2018 and specialises in Family Law and Wills & Estate Planning matters. Jacqui Brown is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.