Family Law Topic 8 1 FAMILY LAW TOPIC Property Disputes.

Family Law Topic 8Family Law Topic 8 11

FAMILY LAWFAMILY LAW

TOPIC TOPIC

Property DisputesProperty Disputes


Preliminary MattersPreliminary Matters Property regimesProperty regimes

unity of propertyunity of property separation of propertyseparation of property community of propertycommunity of property

(strict and deferred)(strict and deferred)


Preliminary MattersPreliminary Matters Part VIII Family Law ActPart VIII Family Law Act

s 71: party to a marriages 71: party to a marriage s 71A: no Part VIII for BFA’ss 71A: no Part VIII for BFA’s ss 72: spousal maintenance right72: spousal maintenance right ss 75: spousal maintenance 75: spousal maintenance

considerationsconsiderations ss 78: declarations of interests in 78: declarations of interests in

propertyproperty ss 79: alteration of interests in property79: alteration of interests in property s 79A: setting aside property orderss 79A: setting aside property orders s 80 general court powerss 80 general court powers s 81 finality principles 81 finality principle


s 106As 106A: execution of instruments: execution of instruments s 106Bs 106B: power to set aside transactions : power to set aside transactions

to defeat claimsto defeat claims s s 85A: ante-nuptial/post-nuptial 85A: ante-nuptial/post-nuptial

settlementssettlements *s *s 86: registration of maintenance agreements86: registration of maintenance agreements s 86A: MA’s made after commencement of Part s 86A: MA’s made after commencement of Part

VIIIA no longer enforceableVIIIA no longer enforceable *s *s 87/87A: court-approved maintenance 87/87A: court-approved maintenance

agreementsagreements *ss 86 and 87 applies only up to *ss 86 and 87 applies only up to

commencement of commencement of Family Law Amendment ActFamily Law Amendment Act 2000 (27.12.00)2000 (27.12.00)

** applies only up to start of applies only up to start of Family Law Family Law Amendment ActAmendment Act 2000 (27.12.00) 2000 (27.12.00)

Part VIII Family Law ActPart VIII Family Law Act


s s 88: enforcement of maintenance 88: enforcement of maintenance agreementsagreements

s s 89: overseas maintenance agreements89: overseas maintenance agreements s s 90: stamp duty exemption90: stamp duty exemption

Also note: Also note: Pt VIIIA (financial agreements)Pt VIIIA (financial agreements) Pt VIIIB (superannuation)Pt VIIIB (superannuation) Pt VIIIAA (third parties)Pt VIIIAA (third parties) Pt VIIIAB De-Facto Financial MattersPt VIIIAB De-Facto Financial Matters

Part VIII Family Law ActPart VIII Family Law Act


(1) Declarations(1) Declarations s s 78(1)78(1)

In proceedings between parties to a In proceedings between parties to a marriagemarriage

Existing title or rights in propertyExisting title or rights in property May declare title or rights in respect May declare title or rights in respect

of propertyof property s s 78(2)78(2)

CConsequential ordersonsequential orders Includes saleIncludes sale


(2) (2) Alteration of Alteration of Property InterestsProperty Interests s s 7979 (key provision) (key provision) note amendments in 1976, 1983, 1987, note amendments in 1976, 1983, 1987, 2000, 2000,

2001, 2005 2001, 2005 etc!etc!(a)(a) PowersPowers

s s 79(1)(a)-(d)79(1)(a)-(d) (specific power) (specific power) s s 8080 (menu of powers) (menu of powers) s 106A (execution of instruments)s 106A (execution of instruments) s s 79(1) 79(1) has has two limbstwo limbs::

general power (a)+(b)general power (a)+(b)two particular orders (c)+(d)two particular orders (c)+(d)

s 79(1A) enforcement against estatess 79(1A) enforcement against estates s 79(1B) adjournment of proceedings?s 79(1B) adjournment of proceedings? s 79(1C) continuation of proceedings (from 1B)s 79(1C) continuation of proceedings (from 1B)


(2) (2) Alteration of Alteration of Property InterestsProperty Interests

(b)(b) Just and Equitable RequirementJust and Equitable Requirements s 79(2)79(2)

Separate & distinct requirement of s 79?Separate & distinct requirement of s 79? A preliminary step? A preliminary step? The final step?The final step? Permeates the entire decision making Permeates the entire decision making

process?process? The order as an outcome? The order as an outcome?

Just & Equitable Just & Equitable Requirement Post-StanfordRequirement Post-Stanford

Is a separate & distinct requirement of s 79Is a separate & distinct requirement of s 79

3 fundamental propositions: 3 fundamental propositions: Begin by identifying existing legal & equitable Begin by identifying existing legal & equitable interests;interests; No palm-tree justice, but in accordanceNo palm-tree justice, but in accordance

with legal principles, including the Actwith legal principles, including the Act No right to have property divided or fixed No right to have property divided or fixed

by reference to s 79(4) ie. Do by reference to s 79(4) ie. Do NOTNOT

conflate s 79(2) and s 79(4)conflate s 79(2) and s 79(4)



(c)(c) Matrimonial PropertyMatrimonial Property

s s 4: definition4: definition all property owned by both partiesall property owned by both parties net value of assetsnet value of assets partnership interests?partnership interests? superannuation entitlements?superannuation entitlements?



(d)Pre-Stanford preferred 4 step approach (d)Pre-Stanford preferred 4 step approach

Step1 - Identify and value the propertyStep1 - Identify and value the property Step 2-Identify & evaluate the respective Step 2-Identify & evaluate the respective

contributions - s 79(4) (a) to (c) contributions - s 79(4) (a) to (c) Step 3- Identify & evaluate the future Step 3- Identify & evaluate the future

needs factors - s 70(4) (d) to (g)needs factors - s 70(4) (d) to (g) Step 4 – Justice and equitable ordersStep 4 – Justice and equitable orders


Alteration of Property Alteration of Property InterestsInterests

(d)(d) Post-Stanford ApproachPost-Stanford Approach

Apply s 79(2) in accordance with the 3 Apply s 79(2) in accordance with the 3

Propositions in StanfordPropositions in Stanford If just & equitable to make an order, If just & equitable to make an order,

then then

follow the preferred 4 step approachfollow the preferred 4 step approach See BevanSee Bevan



(2) (2) Alteration of Alteration of Property InterestsProperty Interests(e)(e) Cross-vested claimsCross-vested claims

TTort/criminal injury compensationort/criminal injury compensation Side-stepped no-fault principle for the Side-stepped no-fault principle for the

battered spousebattered spouse The effect of High Court decision in The effect of High Court decision in Re Re

Wakim Wakim (1999) on the operation of (1999) on the operation of state to federal transfers of jurisdictionstate to federal transfers of jurisdiction

Note pre-Note pre-WakimWakim effect of the effect of the Federal Federal Courts (State Jurisdiction) ActCourts (State Jurisdiction) Act 1999 1999 (NSW)(NSW)


(3) Statutory (3) Statutory ConsiderationsConsiderations s s 79(4)79(4)

in considering in considering what order (if any)what order (if any) the court the court shallshall take into account take into account seven considerationsseven considerations


(3) Statutory (3) Statutory ConsiderationsConsiderations

The ‘Top Seven’– s 79(4)(a)–(c) considerationsThe ‘Top Seven’– s 79(4)(a)–(c) considerationsThe 3 contributions factors to be consideredThe 3 contributions factors to be considered

direct or indirect financial contributions by/on direct or indirect financial contributions by/on behalf of a party/child to acquisition, behalf of a party/child to acquisition, conservation or improvement - s79(4)(a)conservation or improvement - s79(4)(a)

direct or indirect non-financial contributions direct or indirect non-financial contributions by/on behalf of a party/child to acquisition, by/on behalf of a party/child to acquisition, conservation or improvement - s79(4)(b)conservation or improvement - s79(4)(b)

Contribution by a party to the welfare of the Contribution by a party to the welfare of the family ( being parties/children) including in family ( being parties/children) including in capacity homemaker and/or parent - s79(4)(c)capacity homemaker and/or parent - s79(4)(c)

(3) Statutory (3) Statutory ConsiderationsConsiderations

effect of a proposed order on a party’s effect of a proposed order on a party’s earning capacity - s79(4)(d)earning capacity - s79(4)(d)

the relevant s75(2) matters (i.e. spousal the relevant s75(2) matters (i.e. spousal maintenance matters) – s79(4)(e)maintenance matters) – s79(4)(e)

any other order made under the FLA any other order made under the FLA (affecting a party or child of the marriage) (affecting a party or child of the marriage) – s 79(4)(f)– s 79(4)(f)

child support payments that have been child support payments that have been paid/is to be paid/is likely to be paid in paid/is to be paid/is likely to be paid in future for child of the marriage – s79(4)(g)future for child of the marriage – s79(4)(g)


The ‘Top Seven’– s79(4)(d)–(g) considerationsThe 4 future needs factors to be considered


(3) Statutory (3) Statutory ConsiderationsConsiderationsPast (retrospective)Past (retrospective)

contributions:contributions: s s 79(4)(a)-(c) – these79(4)(a)-(c) – these

are the step 2 considerations in the are the step 2 considerations in the

4 step approach4 step approach

FFuture (prospective) needs uture (prospective) needs

[aka s 75(2) factors /maintenance [aka s 75(2) factors /maintenance

factors]:factors]: s s 79(4)(d)-(g) – these are the79(4)(d)-(g) – these are the

step 3 considerations in 4 step step 3 considerations in 4 step approachapproach


(4) (4) Past Contribution Past Contribution FactorsFactors

(a)(a) Financial ContributionsFinancial Contributions• s s 79(4)(a)79(4)(a)• direct financial contribution(s)direct financial contribution(s)• indirect financial contribution(s)indirect financial contribution(s)

(b)(b) Gifts, compensation and windfallsGifts, compensation and windfalls• gifts - donor’s intention?gifts - donor’s intention? clear evidence of joint giftclear evidence of joint gift gifts to childrengifts to children• compensation/windfallscompensation/windfalls

joint contribution?joint contribution?


(4) (4) Past Contribution Past Contribution FFactorsactors

(ba) Superannuation(ba) Superannuation• Pt VIIIB (ss 90MA-90MZH) and RegsPt VIIIB (ss 90MA-90MZH) and Regs• Splitting ordersSplitting orders• Flagging ordersFlagging orders• AgreementsAgreements• ‘‘two pools’? (Coghlan 2005 FLC 93-220)two pools’? (Coghlan 2005 FLC 93-220)

(c)(c) Non-financial contributionsNon-financial contributions• s s 79(4)(b)79(4)(b)

(d)(d) Global or asset-by-asset approachGlobal or asset-by-asset approach• two judicial schools of thoughttwo judicial schools of thought• Norbis (1986)Norbis (1986)


(4) (4) Past Contribution Past Contribution FactorsFactors(e)(e) Homemaker and Parent Homemaker and Parent

ContributionsContributions• s s 79(4)(c)79(4)(c)• equality is equity?equality is equity?• MalletMallet (1984) (1984)• FerraroFerraro (1992) & (1992) & McLayMcLay (1996) (1996)• is family violence relevant? is family violence relevant? If If a a more significantmore significant homemaker/parent homemaker/parent

contribution? (see contribution? (see KennonKennon))


(5) Future Needs Factors(5) Future Needs Factors

(a)(a) Earning capacityEarning capacity• s79(4)(d)s79(4)(d)• family farm/business?family farm/business?

(b)(b) Section Section 75(2)75(2) factors factors• s79(4)(e)s79(4)(e)• maintenance factors maintenance factors • 5-15%?5-15%?• 10-20%?10-20%?• high wealth cases?high wealth cases?


(5) Future Needs Factors(5) Future Needs Factors(c)(c) Superannuation Superannuation pre-2002 reforms was a financial resource pre-2002 reforms was a financial resource for s79(4)(e) purposes but now is for s79(4)(e) purposes but now is

“property” “property” but a different species of “property” : see but a different species of “property” : see CoghlanCoghlan(d)(d) Other ordersOther orders

s s 79(4)(f)79(4)(f)(e)(e) Child supportChild support

s s 79(4)(g)79(4)(g)


General Approach by the General Approach by the Court Court So … a final summary for sSo … a final summary for s 7979 Usually follow the preferred 4 step Usually follow the preferred 4 step

approach as modified by Stanford i.e. approach as modified by Stanford i.e.

PreliminaryPreliminary - Consider whether just & - Consider whether just & equitable to make a s79 order having equitable to make a s79 order having regard to the 3 propositions in Stanford, regard to the 3 propositions in Stanford, if yes, THEN if yes, THEN Step 1 - Identify (and value) the propertyStep 1 - Identify (and value) the propertyStep 2- Identify & Evaluate contributionsStep 2- Identify & Evaluate contributionsStep 3 - Identify & Evaluate future needsStep 3 - Identify & Evaluate future needsStep 4 - Make orders that are just & Step 4 - Make orders that are just & equitable equitable


(6)(6)Setting Aside Orders Setting Aside Orders Altering Property InterestsAltering Property Interests• s s 79A79A• FFive situationsive situations

a.a. miscarriage of justicemiscarriage of justiceb.b. impracticableimpracticablec.c. defaultdefaultd.d. new child circumstancesnew child circumstancese.e. proceeds of crime order (also see ss 79B-proceeds of crime order (also see ss 79B-

79E)79E)• s 79A(1A) consents 79A(1A) consent• ss 79A(2) third party79A(2) third party• s 79A(1B)(1C) death issues s 79A(1B)(1C) death issues


(6)(6)Setting Aside Orders Setting Aside Orders Altering Property InterestsAltering Property Interests

(a)(a) Miscarriage of JusticeMiscarriage of Justice• s s 79A(1)(a)79A(1)(a)• two factorstwo factors

listed categorylisted category miscarriage of justicemiscarriage of justice



(a)(a) Miscarriage of JusticeMiscarriage of Justice• s s 79A(1)(a)79A(1)(a)• listed categorieslisted categories::

fraudfraud duressduress suppression of evidencesuppression of evidence (including failure (including failure to disclose relevant information)to disclose relevant information)

giving of false evidencegiving of false evidence ‘‘any other circumstance’any other circumstance’

• note FL note FL RulesRules





(b)(b) ImpracticabilityImpracticability• s s 79A(1)(b)79A(1)(b)• practically impossiblepractically impossible

(c)(c) DefaultDefault• s s 79A(1)(c)79A(1)(c)

(d)(d) Change in circumstances for childChange in circumstances for child• s s 79A(1)(d)79A(1)(d)• Also note s 79A(1AA) which defines ‘caring Also note s 79A(1AA) which defines ‘caring

responsibility’responsibility’


(7) Third Parties and Competing (7) Third Parties and Competing ClaimsClaims(a)(a) Intervention in proceedingsIntervention in proceedings

• s s 9292• AG intervention: s 91AG intervention: s 91

(b)(b) Corporate and other entitiesCorporate and other entities• Ascot Investments (1981)Ascot Investments (1981)• exceptionsexceptions

‘‘sham’ (evasion)sham’ (evasion) ‘‘puppet’ (effective control)puppet’ (effective control)

• Now see Now see (d)(d) below: Pt VIIIAA below: Pt VIIIAA

(c)(c) Competing claimsCompeting claims


(7) Third Parties and Competing (7) Third Parties and Competing ClaimsClaims(d) Pt VIIIAA ((d) Pt VIIIAA (ss 90AA-90AK)ss 90AA-90AK)

90AE(1) - in s 79 90AE(1) - in s 79 proceedings court may: may: order against creditor for substitution of debtororder against creditor for substitution of debtor order against creditor that the parties be liable for a order against creditor that the parties be liable for a

different proportion of the debt owed different proportion of the debt owed order directed to a order directed to a director of a company or to a of a company or to a

company to register a transfer of shares from one company to register a transfer of shares from one party to the party to the marriage to the other party. to the other party.

90AE(2) - in s 79 90AE(2) - in s 79 proceedings court may make an order may make an order that: that:

directs a directs a third party to do a thing in relation to the to do a thing in relation to the property of a party to the of a party to the marriage; or ; or

alters the rights, liabilities or alters the rights, liabilities or property interests of a of a third party in relation to the in relation to the marriage. .

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html#proceedings

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s20.html#court

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s114a.html#director

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90md.html#marriage

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html#proceedings


http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90ab.html#third_party

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html#property



http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html#interests




(7) Third Parties and Competing (7) Third Parties and Competing ClaimsClaims(d) Pt VIIIAA ((d) Pt VIIIAA (ss 90AA-90AK)ss 90AA-90AK)

90AE(3) - 90AE(3) - court may only make an order under may only make an order under 90AE(1)/(2) if: 90AE(1)/(2) if:

order is reasonably necessary etc to effect a division order is reasonably necessary etc to effect a division of of property between the parties between the parties

if order concerns a debt of a party to the if order concerns a debt of a party to the marriage - it - it is not foreseeable at the time that the order is is not foreseeable at the time that the order is made that to make the order would result in the debt not that to make the order would result in the debt not being paid in fullbeing paid in full

the the third party has been accorded procedural fairness has been accorded procedural fairness court is satisfied that, in all the circumstances, it is is satisfied that, in all the circumstances, it is

just and equitable to make the orderjust and equitable to make the order court is satisfied that the order takes into account the is satisfied that the order takes into account the

matters mentioned in subsection (4).matters mentioned in subsection (4).




http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html#made





(7) Third Parties and Competing (7) Third Parties and Competing ClaimsClaims

90AE(4) - the matters are as follows: 90AE(4) - the matters are as follows: taxation effect (if any) of the order on the parties to the taxation effect (if any) of the order on the parties to the

marriage the taxation effect (if any) of the order on the third partythe taxation effect (if any) of the order on the third party social security effect (if any) of the order on the parties to social security effect (if any) of the order on the parties to

the marriage the marriage third party's administrative costs in relation to the orderthird party's administrative costs in relation to the order if order concerns a debt of a party to the marriage - the if order concerns a debt of a party to the marriage - the

capacity of a party to the marriage to repay the debt after capacity of a party to the marriage to repay the debt after the order is madethe order is made

the economic, legal or other capacity of the third party to the economic, legal or other capacity of the third party to comply with the ordercomply with the order

if, as a result of the third party being accorded procedural if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third fairness in relation to the making of the order, the third party raises any other matters - those mattersparty raises any other matters - those matters

any other matter that the court considers relevant.any other matter that the court considers relevant.



(8) Transactions t0 (8) Transactions t0 Defeat ClaimsDefeat Claims

• SSection s 106B (Part XIII)ection s 106B (Part XIII)

• power: spower: s 106B(1)(2) 106B(1)(2)

• third parties: s third parties: s 106B(3)106B(3)

• party in collusion: sparty in collusion: s 106B(4) 106B(4)

*formerly s 85*formerly s 85


(9) Ante-Nuptial and (9) Ante-Nuptial and Post-Nuptial SettlementsPost-Nuptial Settlements• Section Section 85A85A

• settlement(s) made in relation to the settlement(s) made in relation to the marriagemarriage

note since note since FLAA FLAA 2000 definition of 2000 definition of ‘financial agreement’ in s 4 does not ‘financial agreement’ in s 4 does not include a settlement to which s 85A include a settlement to which s 85A appliesapplies


(10) (10) Financial Financial AgreementsAgreements

(a)(a) Public policy argumentsPublic policy arguments

(b)(b) ‘Maintenance Agreements’ ‘Maintenance Agreements’ (1976-2000)(1976-2000)

s 4(1) definitions(s) s 4(1) definitions(s) ss 86, 87 and 87A (maintenance and ss 86, 87 and 87A (maintenance and

property agreements)property agreements)


(10) (10) Financial Financial AgreementsAgreements(c) (c) ‘Binding Financial Agreements’ ‘Binding Financial Agreements’

(2001-) - Part VIIIA (2001-) - Part VIIIA (i)(i) what is a financial agreementwhat is a financial agreement

- ss 4, 90A-90D- ss 4, 90A-90D(ii)(ii) when can spouses enter into onewhen can spouses enter into one

- before marriage: s 90B- before marriage: s 90B- during marriage: s 90C- during marriage: s 90C- after divorce: s 90D- after divorce: s 90D

*may cover property and resources*may cover property and resources*may cover spousal maintenance*may cover spousal maintenanceNOTE: new s 90DA: need for a NOTE: new s 90DA: need for a

separation declaration!separation declaration!


(10) (10) Financial Financial AgreementsAgreements(iii)(iii) maintenance requirementsmaintenance requirements

s 90E (children)/s 90F (spouses)s 90E (children)/s 90F (spouses) future support? s 90F(1A)future support? s 90F(1A)

(1)(1) No provision of a financial agreement excludes or No provision of a financial agreement excludes or limits the power of a court to make an order in relation to limits the power of a court to make an order in relation to the maintenance of a party to a marriage if subsection (1A) the maintenance of a party to a marriage if subsection (1A) applies.applies.(1A)(1A) This subsection applies if the court is satisfied that, This subsection applies if the court is satisfied that, when the agreement came into effect, the circumstances of when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and the party were such that, taking into account the terms and effect of the agreement, the party was unable to support effect of the agreement, the party was unable to support himself or herself without an income tested pension, himself or herself without an income tested pension, allowance or benefit.allowance or benefit.(2)(2) To avoid doubt, a provision in an agreement made as To avoid doubt, a provision in an agreement made as mentioned in subsection 90C(1) or 90D(1) that provides for mentioned in subsection 90C(1) or 90D(1) that provides for property or financial resources owned by a party to the property or financial resources owned by a party to the agreement to continue in the ownership of that party is agreement to continue in the ownership of that party is taken, for the purposes of that section, to be a provision with taken, for the purposes of that section, to be a provision with respect to how the property or financial resources are to be respect to how the property or financial resources are to be dealt with.dealt with.


(10) (10) Financial Financial AgreementsAgreements(iv)(iv) when agreements binding: when agreements binding:

s 90Gs 90G signed by both partiessigned by both parties statement as to independent advice statement as to independent advice

by by lawyerlawyer signed annexure by lawyersigned annexure by lawyer original (pty 1) & copy (pty 2)original (pty 1) & copy (pty 2)

(v)(v) enforcement? s 90G(2)enforcement? s 90G(2)(vi)(vi) effect of death a party: s 90Heffect of death a party: s 90H(vii)(vii) ‘termination agreement’: s 90J ‘termination agreement’: s 90J

(ie terminating the financial (ie terminating the financial agreement)agreement)


(10) (10) Financial Financial AgreementsAgreements(viii) setting aside agreement: s 90K(viii) setting aside agreement: s 90K obtained by fraudobtained by fraud void, voidable, unenforceablevoid, voidable, unenforceable impracticableimpracticable exception of child-related hardshipexception of child-related hardship(ix)(ix) validity, enforceability, effect: validity, enforceability, effect: s 90KAs 90KA(x)(x) stamp duty exemption: s 90Lstamp duty exemption: s 90L Also Note: Also Note: ss 90M-90Qss 90M-90Q Capital gains tax Capital gains tax

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Family Law Topic 8 1 FAMILY LAW TOPIC Property Disputes.

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