Divorce: do mothers have more rights than fathers?
In short, no. Divorce in Australia is no fault. A mother and father have the same right to make an application for a divorce. Neither party is treated any more favourably to the other. The court looks at evidence, not gender.
Divorce and property settlements
It is a common misconception that divorce automatically means a mother then has the right to ‘get the house’, be paid spousal maintenance (referred to as alimony in other countries such as America) or receive child support.
In Australia, divorce operates separately from a property settlement. One does not automatically lead to the other, however, a timeframe of 12 months to commence court proceedings for a property settlement will be imposed from the date a divorce Order takes effect.
Again, neither the mother or father is treated more favourably in determining property settlements. In Australia, the law provides the following approach when a court is tasked with determining a property settlement:
First, the court identifies the assets you each had when you started living together
For example, you may have had substantial savings, or owned an unencumbered property. Depending on the length of your relationship, assets that were owned when you commenced cohabitation may be treated as initial contributions, which may warrant an adjustment in your favour. Over time, initial contributions ‘fade’, and generally, the longer the relationship, the less likely an adjustment will be made.
Second, the court identifies the assets and liabilities at the end of the relationship
This is why the date of separation may sometimes be contested in a divorce. The value of a pool of assets may fluctuate depending on the market and economy so one party may argue a different date of separation if it would work better for them in a property settlement.
Pool of assets
It is important to be able to identify all of the assets and liabilities of the relationship to indicate the net pool available from which a property settlement can be negotiated and agreed to, or determined by the court. If you disagree on values, expert valuations may be required. The court does not favour the mother or father’s opinion and bases its determinations on appropriate evidence.
Third, the court assesses the contributions made by each of you
Contributions in family law refers to the acquisition, conservation and improvement of assets. It includes:
– Financial, such as generating income
– Non-financial, such as parent and home maker
– Home improvements, such as painting walls, building a deck, landscaping
– Home maintenance, such as vacuuming, mopping, gardening, lawn mowing
– One parent raising children thus enabling the other parent to generate income
The weight attributed to parenting and home maker contributions should not be mistaken as mothers having more rights than fathers. A parent who worked and paid ‘all the bills’ could not have done so if the other parent did not stay home to raise the children. Therefore it is important and appropriate to take this contribution into account.
Finally, the court considers whether any adjustments should be made