50/50 WHAT DOES IT REALLY MEAN?
“50/50” – What does it Really Mean After a Separation?
Frances Edwards, an accredited family law specialist at the firm, Edwards Family Lawyers, is of the view that the family law reforms regarding parenting arrangements for families after separation have lead to confusion, misconception and, in some cases, unnecessary litigation.
The 2006 reforms which placed emphasis on the expression “equal shared parental responsibility” has led to excessive focus on numbers such as “50/50” when negotiating parenting arrangements. In their bid to forge ahead with litigation to obtain the illusory 50/50 parenting arrangement, many parents have lost sight of the real considerations, such as the proximity of their residences, the age and needs of the child, the ability of each parent to provide for those needs, the child’s educational and social commitments, and so on. Frances Edwards, who has practiced in all aspects of family law for more than 20 years said today:
“There is a commonly held belief by many of my clients that the children must live for equal periods of time with both parents after a separation. This not the case. The principle to be applied by parents when deciding on how much time children spend with each of them, is still “what is in the child’s best interests?”
Frances Edwards also said
“Whilst children do generally spend more than alternate weekends with the non-resident parent, equal time is still not the norm. The parents must have a good relationship for an equal living arrangement to work.
If equal time does not suit, then the next question is how much time with each parent is ideal for this family. No two families are the same and there are many different types of parenting arrangements which can be agreed upon with some expert guidance.
I have often heard Judges and Magistrates say to litigating parties: ‘You are the people who are best equipped to decide with whom your children are going to live and how much time they spend with each of you.’ ”
Similarly there is no presumption of “equal property division” in the family law legislation concerning property settlements after separation. Most people, however, still believe they are automatically entitled to “half of the property” after a long marriage or de facto relationship.
Frances Edwards said:
“There is no presumption of a 50/50 split of assets after separation. The principles to be applied are: the financial contributions made by each party over the period of cohabitation; the non-financial contributions of each party, such as the role of homemaker and parent; the future financial position of each party, such as obligations to provide for children; the age and state of health of each party; the duration of the marriage or defacto relationship and the extent to which that has affected the earning capacity of a party.”
It is far easier to identify and assess the retrospective contributions by each party than the future positions of the parties. Given the financial instability created by the GFC, the judge’s task of looking into a crystal ball to try and assess the parties’ future financial positions is made more difficult and the outcomes more uncertain. Frances Edwards urges separating parties to try and reach agreement. She said:
“Parties who are able to reach agreement by negotiation with the guidance of an expert family law specialist will save in legal fees, time and will experience considerably less emotional stress than those people who go to Court.“
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When married couples separate, there is only one ground for the grant of a Divorce Order, and that is the irretrievable breakdown of the marriage. This is established by the parties being separated for a minimum of 12 months. In some circumstances, parties can be living under the same roof and still be able to establish this ground.
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The best interests of the children is the paramount consideration when determining the most appropriate and suitable arrangements for the children after a separation. At Edwards Family Lawyers, we encourage our clients to participate in the counselling or mediation services available to assist them to reach an agreement with their spouse/former partner
Edwards Family Lawyers offer Mediation Services to assist parties to engage in effective dispute resolution. Our Principal, Frances Edwards, has extensive experience in negotiating settlements in both parenting and property matters, and is a National Accredited Mediator and member of LEADR and IAMA.
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De Facto couples (including same sex couples) who separate after 1 March 2009 have the same rights as married couples. The rights and obligations of couples upon the breakdown of a Marriage or De Facto relationship are now all governed by the Family Law Act 1975. De Facto couples who separated prior to 1 March 2009 are still covered by the old State legislation
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