Legal Myths Busted: What Australians Get Wrong About Costs, Family Law and Estates

Episode Introduction

Episode 15 of Legal Matters on 4CRB is dedicated to legal myths, those confident assertions made in coffee shops, at barbecues, and in pub conversations that sound plausible but turn out to be wrong. Andrew Bell chose the theme because the law changes over time, popular culture often misrepresents it, and what seems logical or fair is not always what Parliament has enacted. The result is a generation of Australians who believe they understand their rights but are working from outdated or incorrect information.

Legal Myths Covered This Episode

1. Myth 1: “If you win in court, the other side automatically pays all your legal fees.” Reality: Costs orders rarely cover the full amount spent, and collecting on them requires further effort. Relevant law: Uniform Civil Procedure Rules 1999 (Qld), general costs discretion principles.

2. Myth 2: “A barrister and a solicitor are basically the same thing.” Reality: Queensland has a split profession. Solicitors manage client work and strategy; barristers focus on court advocacy and specialist advice. Relevant law: Legal Profession Act 2007 (Qld).

3. Myth 3: “You cannot represent yourself in court.” Reality: Self-representation is legally permitted in any court in Australia, though courts expect self-represented parties to comply with all procedural rules.

4. Myth 4: “If your lawyer gives bad advice, you automatically get your money back.” Reality: A successful claim against a lawyer requires proof of negligence and that the negligence caused an actual loss.

5. Myth 5: “There is no point complaining about a lawyer because nothing happens.” Reality: The Legal Services Commission in Queensland investigates all complaints and has the power to suspend, fine, or remove a legal practitioner from practice.

6. Myth 6: “You have to prove fault to get divorced in Australia.” Reality: Australia has had a no-fault divorce system since 1975. Twelve months of separation is the only requirement. Relevant law: Family Law Act 1975 (Cth) s 48.¹

7. Myth 7: “After living together for two years, de facto partners automatically get half of everything.” Reality: Two years establishes eligibility to apply for a property settlement; it does not create an entitlement to 50 per cent. Relevant law: Family Law Act 1975 (Cth) s 90SB.²

8. Myth 8: “If a parent does not pay child support, the other parent can stop them seeing the children.” Reality: Child support and parenting arrangements are legally separate. Withholding children is not a lawful enforcement mechanism. Relevant law: Child Support (Assessment) Act 1989 (Cth); Family Law Act 1975 (Cth) pt VII.³

9. Myth 9: “A parenting plan is legally binding just like a court order.” Reality: A parenting plan is not enforceable. Only consent orders approved by the court carry legal force. Relevant law: Family Law Act 1975 (Cth) s 63C.⁴

10. Myth 10: “The mother automatically gets custody of the children.” Reality: Australian family law applies a best-interests test. No automatic presumption in favour of either parent exists. Relevant law: Family Law Act 1975 (Cth) s 60CA.⁵

11. Myth 11: “If you die without a will, everything goes to the government.” Reality: Intestacy rules distribute the estate to eligible relatives. Government inheritance is a last resort only. Relevant law: Succession Act 1981 (Qld) pt 3.⁶

12. Myth 12: “You can make changes to your will by writing on it and initialling them.” Reality: Handwritten margin notes can confuse or invalidate a will and trigger expensive litigation. Relevant law: Succession Act 1981 (Qld) s 10.⁷

13. Myth 13: “Your will controls everything you own.” Reality: Superannuation and jointly held property often pass outside the will entirely. Relevant law: Succession Act 1981 (Qld); Superannuation Industry (Supervision) Act 1993 (Cth) s 59.⁸

14. Myth 14: “If you are left out of a will, there is nothing you can do.” Reality: Eligible persons can make a family provision claim if adequate provision was not made for them. Relevant law: Succession Act 1981 (Qld) pt 4.⁹

15. Myth 15: “A will kit is just as good as seeing a lawyer.” Reality: A correctly executed will kit is legally valid, but complex circumstances such as blended families or business interests often produce problems that a lawyer would have anticipated.

Annotated Transcript

Court Costs and the “Loser Pays” Assumption

One of the most widespread beliefs about litigation is that winning in court means a complete financial recovery, including every dollar paid in legal fees. Andrew explained that while the principle “costs follow the event” does have a basis in Australian civil procedure, it does not mean full reimbursement. A costs order is typically calculated on a standard or indemnity basis and will rarely match what a client actually paid their own solicitor throughout the proceedings.¹

The situation in QCAT is even more stark. Colin noted from earlier episodes that QCAT operates without any costs recovery at all: each party pays its own costs regardless of the outcome, with only the initial filing fee forming part of the process. Andrew confirmed this, noting that parties going to QCAT need to understand from the outset that a win on the merits does not come with a cheque to cover their trouble.

Barristers and Solicitors: A Split Profession

Many Australians assume that all lawyers perform the same function regardless of their title. Andrew clarified that Queensland retains a split profession, unlike some other states where the two roles have been fused. A solicitor is the professional who works directly with the client, manages documentation, develops legal strategy, and can appear in court including at Supreme Court level. A barrister is engaged for specialised court advocacy or detailed advice in a specific area of law and does not typically hold a direct relationship with the client.¹⁰

The distinction has practical implications for cost and workflow. Engaging a barrister for a complex matter adds a layer of specialist expertise but also adds expense. Andrew noted that solicitors can and do appear in court regularly and that barristers are not always necessary, particularly in matters that do not require specialist advocacy.

Self-Representation in Court

The myth that a person has no right to represent themselves in court is simply incorrect as a matter of law. Andrew confirmed that self-representation is permitted in any court in Australia. The practical problem is not the right but the expectation that follows from it: courts treat self-represented parties the same as any other litigant, which means full compliance with procedural rules, evidence rules, filing deadlines, and court etiquette.

Suing a Lawyer for Bad Advice

The belief that poor legal advice automatically entitles a client to their money back misunderstands the law of professional negligence. To succeed in a claim against a solicitor, a claimant must establish that the solicitor fell below the standard of care expected of a reasonably competent practitioner in that area, and that this failure directly caused a quantifiable loss. Losing a case does not, by itself, demonstrate either element.¹

Andrew pointed out that pursuing such a claim typically requires engaging another solicitor, obtaining expert opinion on the standard of care, and running what can become protracted litigation. The practical burden means that only genuinely strong cases are worth pursuing.

Complaining About a Lawyer

A common piece of cynicism holds that lodging a complaint about a lawyer is pointless because nothing will happen. Andrew firmly rejected this. The Legal Profession Act 2007 (Qld) establishes the Legal Services Commission as an independent body with a statutory obligation to investigate complaints about any Queensland legal practitioner.¹⁰ The Commission’s powers extend to disciplinary proceedings, fines, conditions on practice, suspension, and removal from the roll.

No-Fault Divorce in Australia

The belief that divorce in Australia requires evidence of wrongdoing, such as adultery or cruelty, is a remnant of the pre-1975 legal landscape and of American television drama. The Family Law Act 1975 (Cth) abolished fault-based divorce entirely.¹ The sole ground for divorce in Australia is irretrievable breakdown of the marriage, demonstrated by twelve months of continuous separation.¹

Andrew noted that Australia’s shift in 1975 was a deliberate policy decision to remove the court from the role of adjudicating marital fault, which had created incentives for fabrication and significant emotional damage. Some jurisdictions, including parts of the United States, still attach financial consequences to fault, but Australia has taken the position that the decision to end a marriage is a personal one and the state’s only role is to confirm that the separation is genuine and durable.

De Facto Property Rights After Two Years

The myth that two years of cohabitation automatically entitles a de facto partner to half of all assets is persistent and potentially damaging. Andrew explained that the two-year threshold in Australian family law serves a different function: it establishes the minimum duration of a de facto relationship needed to trigger eligibility to apply to a court for a property settlement.² Whether any order is made, and for what amount, is then determined by a detailed assessment of contributions (financial and non-financial), future needs, the presence of children, and any disparity in earning capacity.

The court retains broad discretion and applies no formula that guarantees a 50/50 outcome. A partner who entered the relationship with substantially greater assets, or who made the dominant financial contribution throughout, may well see that recognised in a settlement that departs significantly from equal division.

Child Support and Parenting Arrangements: Two Separate Systems

The belief that a parent can lawfully withhold children from the other parent as a response to unpaid child support is one Andrew said he encounters regularly and which causes significant harm. Australian law treats child support and parenting arrangements as entirely independent legal frameworks. Non-payment of child support is addressed through the Child Support Agency and, if necessary, through enforcement proceedings in the Federal Circuit and Family Court.³ It has no bearing on a parent’s legal entitlement to spend time with their children.

Caller: John — Separation, Surnames and a Delayed Divorce

John called in with a cluster of practical questions arising from his son’s marriage breakdown. His son had separated from his wife roughly twelve months earlier but had not yet started the formal divorce process, and John was concerned about his own estate being exposed to a claim by the estranged daughter-in-law.

Andrew explained that people are not compelled to divorce even after separating, but that delay creates ongoing legal exposure. While the couple remain married, the estranged spouse retains the potential to make a family provision claim against the estate of a parent-in-law if she can establish that she was in a relevant relationship and had an expectation of benefit. Andrew’s practical advice was for John to clearly document his intentions in his own will and for his son to begin the divorce process if the marriage is genuinely over.

John also raised questions about his daughter-in-law retaining the family surname after separation, which Andrew clarified is entirely her right. A person can choose to keep, discard, or adopt a surname at marriage and again after divorce, and no other party has standing to require a change.

John’s second question concerned a no-win no-fee personal injury claim his son had been pursuing for years without resolution. Andrew noted that personal injury litigation, governed in Queensland by the Personal Injuries Proceedings Act 2002 (Qld), involves a structured pre-litigation process that both parties must follow before court proceedings can be issued.¹¹ While the delay was frustrating, the appropriate response was to seek an update from the lawyers and, if the process had been completed, to instruct them to commence proceedings rather than continue waiting for a voluntary settlement.

Lotto Winnings After an Unresolved Separation

Colin raised a scenario that had been put to him some years earlier: if a couple separates but never formalises the divorce, and one of them wins the lottery a decade later, is the other entitled to a share of the winnings? Andrew’s answer was nuanced. If the couple remain legally married and no property settlement has ever been finalised, a court assessing a property claim at that later date would look at the pool of assets as at the time of proceedings, which could theoretically include the lottery win if the parties had never concluded a formal property settlement.

However, if a divorce has been granted and a reasonable period has passed without any property claim being filed, Andrew considered it unlikely that a former spouse could establish standing to claim on a windfall with which they had no connection. The practical lesson is that finalising both the divorce and a property settlement promptly removes this uncertainty. A clean break order or binding financial agreement ensures that each party’s future wealth is their own.

Parenting Plans Versus Consent Orders

A parenting plan is a written agreement between separated parents about arrangements for their children. It can cover living arrangements, school decisions, holidays, and communication. Andrew confirmed that many families use them effectively and that they are far faster and cheaper to create than going to court. The critical limitation is enforceability. A parenting plan carries no legal force. If one parent decides not to comply, the other cannot call the police or seek immediate court enforcement on the basis of the plan alone.⁴

Consent orders resolve this problem. When both parents agree on the arrangements and file them with the Federal Circuit and Family Court of Australia, the court reviews the terms for compliance with the best-interests standard, and if satisfied, endorses them as orders of the court. From that point, the same terms carry full legal force and are enforceable.

The Best Interests Test in Child Custody

The persistent idea that Australian courts automatically favour mothers in custody disputes does not reflect the law. The Family Law Act 1975 (Cth) directs the court to make parenting orders that are in the best interests of the children.⁵ This involves assessing the benefit of children having a meaningful relationship with both parents, the need to protect children from harm, each parent’s capacity to meet the children’s needs, and the practical realities of the proposed arrangements.

Andrew acknowledged that men’s groups and public discourse often suggest systemic bias, but emphasised that the legislation contains no presumption based on parental gender. In practice, outcomes often reflect the preferences and circumstances of individual parents rather than any structural preference.

Caller: Jeffrey — Insuring a Mixed-Use Property

Jeffrey called with a practical question about insuring a property that functions as both his owner-occupied residence and a rental unit. The property sits on one title without strata subdivision, dating from a time before strata title legislation existed, and council has long recognised it as a multi-unit dwelling.

Andrew explained that the insurance issue reflects the different risk profiles that insurers assign to owner-occupied and landlord properties, which typically sit in entirely separate product lines. His recommendation was to insure the owner-occupied portion under a standard home and contents policy and the rental portion under a commercial landlord insurance policy. For properties with unusual tenure arrangements, an insurance broker is often better placed than a direct insurer to locate suitable cover.

Intestacy: The Government Does Not Get Your Estate

The belief that dying without a will automatically delivers the estate to the government deters many Australians from seeking estate planning advice, on the flawed logic that a will is pointless. Andrew confirmed the belief is false. The Succession Act 1981 (Qld) establishes a hierarchy of entitled relatives who inherit on intestacy.⁶ The estate passes first to a spouse or de facto partner, then to children, then to parents and siblings, and through progressively wider family connections. Government escheat is reserved for the rare case where no entitled relative can be identified anywhere.

The real cost of intestacy is not government seizure but administrative complexity. The people dealing with the estate must establish that no will exists, determine who is entitled to administer, and navigate a fixed distribution formula that may not reflect the deceased’s wishes, all while managing grief. A properly drafted will eliminates that burden entirely.

Handwritten Changes to a Will

Andrew observed that he has encountered this scenario in practice, where a family member asserts that a handwritten amendment in the margin of a will reflects the testator’s true intention, perhaps changing a gift of $50,000 to $150,000. Under Queensland law, a will must be properly executed to be valid, and alterations made after execution require their own formal execution or should be dealt with by a new will.⁷

Even apparently minor physical alterations to a will, including a missing staple, can trigger court applications because of the risk that pages have been substituted or removed. Handwritten notes in the margin create ambiguity about whether they were present when the will was signed, who wrote them, and whether they were intended to be testamentary. The cost of resolving that ambiguity in court can far exceed any sum in dispute.

What a Will Does Not Control

Andrew surprised some listeners with the reminder that a will does not govern all assets. Superannuation is a prime example: the trustee of a superannuation fund has discretion over the distribution of death benefits, guided by any binding death benefit nomination lodged by the member.⁸ If no valid nomination exists, the trustee may distribute the super to dependants in proportions it considers appropriate, which may not align with the will.

Jointly owned property held as joint tenants passes automatically to the surviving owner on death by operation of law, bypassing the will entirely. Andrew used the example of a separated couple who remain on title together: if the husband dies before the divorce is finalised, the wife may receive the property automatically as surviving joint tenant regardless of what any will says.

Family Provision Claims

Being left out of a will does not extinguish all legal options. Queensland law allows eligible persons who have not received adequate provision from an estate to make a family provision application to the court.⁹ Eligible applicants include spouses and de facto partners, children, dependants, and others in a relevant relationship with the deceased. The court assesses whether the provision made (or not made) was adequate given the applicant’s circumstances, needs, and relationship with the deceased.

Andrew noted that the caller John’s scenario, involving an estranged daughter-in-law who remained technically married to John’s son, illustrated exactly this risk. Until a divorce is finalised, someone in a relevant relationship may have standing to bring such a claim.

Will Kits: Adequate or Risky?

Andrew gave a measured answer on will kits, resisting an absolute prohibition. A will kit that is correctly completed, properly signed, and appropriately witnessed is a valid legal document. For a person with straightforward assets, no blended family complications, no business interests, and clear intentions, a will kit may serve its purpose.

The difficulty is that people rarely know what they do not know. Common problems include failing to account for superannuation nominations, not addressing what happens if a beneficiary predeceases the testator, unclear or ambiguous language, and inadequate provision for dependants that invites a family provision claim. Each of those problems can generate litigation costs that dwarf the price of professional advice.

Key Takeaways

1. Costs orders are not full reimbursement. Winning in court rarely means recovering every dollar spent on legal fees, and collecting on a costs order requires further enforcement effort.

2. Queensland has a split legal profession. Barristers specialise in court advocacy while solicitors manage client work. Both are lawyers, but they serve different functions and are not interchangeable.

3. No-fault divorce has been the law for over 50 years. The Family Law Act 1975 (Cth) s 48 requires only twelve months of separation to demonstrate irretrievable breakdown.¹

4. The two-year de facto threshold creates eligibility, not entitlement. Reaching two years of cohabitation opens the door to a property claim but does not guarantee any particular outcome, let alone an equal split.

5. Child support and parenting time are legally separate. Withholding children is not a lawful response to missed child support payments and can have adverse legal consequences for the withholding parent.

6. A parenting plan is not enforceable. Only consent orders approved by the court carry the force of law. Families who want security should convert agreed arrangements into consent orders.

7. Intestacy sends estates to relatives, not the government. The Succession Act 1981 (Qld) provides a detailed hierarchy of entitled relatives who inherit when a person dies without a will.⁶

8. Superannuation and jointly held property fall outside the will. Estate planning must account for assets that pass by operation of law or through fund trustee decisions, not only through the will.

9. Eligible persons can challenge a will. A family provision claim under the Succession Act 1981 (Qld) pt 4 allows spouses, children, dependants, and those in relevant relationships to seek adequate provision from an estate.⁹

10. The Legal Services Commission has real power. Complaints about Queensland lawyers are investigated by a statutory body with authority to suspend, fine, and remove practitioners from the roll.

Related Episodes

• Episode 2: Enduring Power of Attorney — Relevant to estate planning discussions in this episode, particularly the interaction between EPOA and will provisions.
• Episode 3: Wills and Estates — Core reference episode for intestacy, family provision claims, and superannuation myths covered in Episode 15.
• Episode 4: Blended Families — Directly relevant to the discussion of will kits, family provision claims, and the complexities of separated but not divorced spouses.
• Episode 5: Wills and Defamation — Touches on will challenges and the risks of online complaints about professionals.
• Episode 7: QCAT and Disputes — Referenced directly when Andrew confirmed the QCAT no-costs rule.
• Episode 8: QCAT, Guardianship and Neighbour Disputes — Additional QCAT context relevant to the costs myth discussion.
• Episode 9: Property, Form 2, Strata — Relevant to de facto property rights and jointly held property passing outside the will.
• Episode 10: Off the Plan and Probate — Probate and estate administration discussed in the context of dying without a will.
• Episode 11: Debt Collection and EPOA — Relevant to the no-win no-fee personal injury scenario raised by caller John.
• Episode 12: Loan Agreements and Debt Collection — Additional context on enforcement delays and what happens when litigation stalls.
• Episodes 13 and 14: Administrative Law — Relevant background on the Legal Services Commission’s administrative powers discussed in the myth about complaining about a lawyer.

Closing Summary and Next Week Preview

Episode 15 worked through fifteen legal myths spanning court procedure, the legal profession, family law, and estate planning. Andrew demonstrated that many of the most persistent misconceptions arise from outdated laws, American legal culture absorbed through television, and an intuitive sense of fairness that does not always match legislative reality. The consistent theme was that the law is more nuanced than popular belief suggests, and that assumptions made without professional advice can carry real financial and legal consequences.

Andrew indicated that he would be returning the following week to take listener questions live on air, and encouraged anyone with specific legal questions to call 07 5520 8888 during the broadcast or to email questions in advance to mail@4crb.com . The open-question format means the next episode’s content will be shaped by the Gold Coast community’s current legal concerns.

Footnotes