SKNMarried couples and de-facto parties may seek to have their property divided when they go their separate ways.

If this is to occur, the Family Court must consider whether it is just and equitable for the assets of separated parties to be adjusted. There is no automatic “right” to a property settlement.

The recent decision of Chancellor & McCoy [2016] FamCAFC256 delivered in the full Court of the Family Court reinforces this principle.

The facts of that case were as follows:

  1. The parties lived together in a 27 year same sex de-facto relationship;
  2. The parties lived in homes owned solely by one party with a small amount of money paid weekly to the other party for her occupation of the homes;
  3. The parties were of similar age and both had worked full time;
  4. There was no intermingling of finances;
  5. There was no joint bank account;
  6. Each party acquired property in their sole names;
  7. Each party was responsible for their own debts;
  8. Each party could use their wages as they chose;
  9. Neither party made provision for the other in their Wills or life insurance policies.

The applicant in this case had assets worth $720,000. The respondent had assets worth $1.7 million.  The most significant difference in the value of the assets was due to the respondent making greater contributions to her superannuation over a number of years, such that her superannuation was worth $887,724 whereas the applicant’s superannuation was worth $204,177.

The trial Judge who presided over the preliminary matter had said:

“It is easy to assume that where parties have been together in a recognised legal relationship, whether a marriage or a de-facto relationship, and during that relationship the parties have accumulated property, that it automatically flows that a property settlement will occur following separation.

In the majority of cases this is true…. but….this is not always the case.

There are matters due to their particular facts which cannot fall within that assumption and where it is not just inequitable to progress to an alteration of property.”

Accordingly the appeal was not allowed and the decision made by the trial Judge was upheld, that there be no adjustment of property.

In essence the lack of financial intertwining and financial planning for the future by the parties, as well as their evident separation of finances and continued individual ownership of property, meant that the Court was not prepared to allow the appeal and accordingly the property interests of the parties remained unchanged.

It is very important that you seek legal advice before embarking on a property settlement. At Everingham Solomons we have the expertise and experience to assist you with property matters because Helping You is Our Business. 

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