1. FAMILY LAW
TOPIC
Property Disputes
Family Law Topic 8

2. Preliminary Matters Property regimes unity of property
separation of property
community of property
(strict and deferred)
Family Law Topic 8

3. Preliminary Matters Part VIII Family Law Act s 71: party to a marriage
s 71A: no Part VIII for BFA’s
s 72: spousal maintenance right
s 75: spousal maintenance considerations
s 78: declarations of interests in property
s 79: alteration of interests in property
s 79A: setting aside property orders
s 80 general court powers
s 81 finality principle
Family Law Topic 8

4. Part VIII Family Law Act
s 106A: execution of instruments
s 106B: power to set aside transactions to defeat claims
s 85A: ante-nuptial/post-nuptial settlements
*s 86: registration of maintenance agreements
s 86A: MA’s made after commencement of Part VIIIA no longer enforceable
*s 87/87A: court-approved maintenance agreements
*ss 86 and 87 applies only up to commencement of Family Law Amendment Act 2000 ( )
* applies only up to start of Family Law Amendment Act 2000 ( )
Family Law Topic 8

5. Part VIII Family Law Act
s 88: enforcement of maintenance agreements
s 89: overseas maintenance agreements
s 90: stamp duty exemption
Also note:
Pt VIIIA (financial agreements)
Pt VIIIB (superannuation)
Pt VIIIAA (third parties)
Pt VIIIAB De-Facto Financial Matters
Family Law Topic 8

6. (1) Declarations s 78(1) In proceedings between parties to a marriage
Existing title or rights in property
May declare title or rights in respect of property
s 78(2)
Consequential orders
Includes sale
Family Law Topic 8

7. (2) Alteration of Property Interests
s 79 (key provision)
note amendments in 1976, 1983, 1987, 2000, 2001, 2005 etc!
(a) Powers
s 79(1)(a)-(d) (specific power)
s 80 (menu of powers)
s 106A (execution of instruments)
s 79(1) has two limbs:
general power (a)+(b)
two particular orders (c)+(d)
s 79(1A) enforcement against estates
s 79(1B) adjournment of proceedings?
s 79(1C) continuation of proceedings (from 1B)
Family Law Topic 8

8. (2) Alteration of Property Interests
(b) Just and Equitable Requirements 79(2)
Separate & distinct requirement of s 79?
A preliminary step?
The final step?
Permeates the entire decision making process?
The order as an outcome?
Family Law Topic 8

9. Just & Equitable Requirement Post-Stanford
Is a separate & distinct requirement of s 79
3 fundamental propositions:
Begin by identifying existing legal & equitable interests;
No palm-tree justice, but in accordance
with legal principles, including the Act
No right to have property divided or fixed
by reference to s 79(4) ie. Do NOT
conflate s 79(2) and s 79(4)
Family Law Topic 8

10. (2) Alteration of Property Interests
(c) Matrimonial Property
s 4: definition
all property owned by both parties
net value of assets
partnership interests?
superannuation entitlements?
Family Law Topic 8

11. (2) Alteration of Property Interests
(d)Pre-Stanford preferred 4 step approach
Step1 - Identify and value the property
Step 2-Identify & evaluate the respective contributions - s 79(4) (a) to (c)
Step 3- Identify & evaluate the future needs factors - s 79(4) (d) to (g)
Step 4 – Justice and equitable orders
Family Law Topic 8

12. (2) Alteration of Property Interests
(e) Cross-vested claims
Tort/criminal injury compensation
Side-stepped no-fault principle for the battered spouse
The effect of High Court decision in Re Wakim (1999) on the operation of state to federal transfers of jurisdiction
Note pre-Wakim effect of the Federal Courts (State Jurisdiction) Act 1999 (NSW)
Family Law Topic 8

13. Post-Stanford Approach
Apply s 79(2) in accordance with the 3
Propositions in Stanford
If just & equitable to make an order, then
follow the preferred 4 step approach
See Bevan
Family Law Topic 8

14. (3) Statutory Considerations
in considering what order (if any)
the court shall take into account
seven considerations
Family Law Topic 8

15. (3) Statutory Considerations
The ‘Top Seven’
direct or indirect financial contributions
direct or indirect non-financial contributions
homemaker and/or parent contributions
============================
effect of a proposed order on a party’s earning capacity
the spousal maintenance matters [see s75(2)]
any other order made under the FLA (affecting a party or child of the marriage)
child support payments
Family Law Topic 8

16. (3) Statutory Considerations
Past (retrospective)
contributions: s 79(4)(a)-(c)
Future (prospective) needs
[aka s 75(2) factors]: s 79(4)(d)-(g)
Family Law Topic 8

17. (3) Statutory Considerations
Family Law Topic 8

18. (4) Past Contribution Factors
(a) Financial Contributions
s 79(4)(a)
direct financial contribution(s)
indirect financial contribution(s)
(b) Gifts, compensation and windfalls
gifts - donor’s intention?
clear evidence of joint gift
gifts to children
compensation/windfalls
joint contribution?
Family Law Topic 8

19. (4) Past Contribution Factors
(ba) Superannuation
Pt VIIIB (ss 90MA-90MZH) and Regs
Splitting orders
Flagging orders
Agreements
‘two pools’? (Coghlan 2005 FLC )
(c) Non-financial contributions
s 79(4)(b)
(d) Global or asset-by-asset approach
two judicial schools of thought
Norbis (1986)
Family Law Topic 8

20. (4) Past Contribution Factors
(e) Homemaker and Parent Contributions
s 79(4)(c)
equality is equity?
Mallet (1984)
Ferraro (1992) & McLay (1996)
is family violence relevant? .. if not:
amend the Act?
a negative contribution?
a more significant homemaker/parent contribution? (Kennon)
Family Law Topic 8

21. (5) Future Needs Factors
(a) Earning capacity
s79(4)(d)
family farm/business?
(b) Section 75(2) factors
s79(4)(e)
maintenance factors
5-15%?
10-20%?
high wealth cases?
Family Law Topic 8

22. (5) Future Needs Factors
(c) Superannuation (pre-2002 reforms)
financial resource for s79(4)(e) purposes
it is a significant resource!
Government’s retirement policy
different policy types - defined benefits and accrued benefits
five approaches
- ‘needs’
- ‘take it into account’
- mathematical (realisable value)
- deferral
looks like property… feels like property?
Fed. Govt’s 1998 Discussion Paper
Family Law Topic 8

23. (5) Future Needs Factors
(d) Other orders
s 79(4)(f)
(e) Child support
s 79(4)(g)
So … a final summary for s 79
Identify (and value) the property
Evaluate contributions
Evaluate needs
Just and equitable result(?)
Family Law Topic 8

24. (6) Setting Aside Orders Altering Property Interests
Five situations
miscarriage of justice
impracticable
default
new child circumstances
proceeds of crime order (also see ss 79B-79E)
s 79A(1A) consent
s 79A(2) third party
s 79A(1B)(1C) death issues
Family Law Topic 8

25. (6) Setting Aside Orders Altering Property Interests
(a) Miscarriage of Justice
s 79A(1)(a)
two factors
listed category
miscarriage of justice
Family Law Topic 8

26. (6) Setting Aside Orders Altering Property Interests
(a) Miscarriage of Justice
s 79A(1)(a)
listed categories:
fraud
duress
suppression of evidence (including failure to disclose relevant information)
giving of false evidence
‘any other circumstance’
note FL Rules
Family Law Topic 8

27. (6) Setting Aside Orders Altering Property Interests
Family Law Topic 8

28. (6) Setting Aside Orders Altering Property Interests
(b) Impracticability
s 79A(1)(b)
practically impossible
(c) Default
s 79A(1)(c)
(d) Change in circumstances for child
s 79A(1)(d)
Also note s 79A(1AA) which defines ‘caring responsibility’
Family Law Topic 8

29. (7) Third Parties and Competing Claims
(a) Intervention in proceedings
s 92
AG intervention: s 91
(b) Corporate and other entities
Ascot Investments (1981)
exceptions
‘sham’ (evasion)
‘puppet’ (effective control)
Now see (d) below: Pt VIIIAA
(c) Competing claims
Family Law Topic 8

30. (7) Third Parties and Competing Claims
(d) Pt VIIIAA (ss 90AA-90AK)
90AE(1) - in s 79 proceedings court may:
order against creditor for substitution of debtor
order against creditor that the parties be liable for a different proportion of the debt owed
order directed to a director of a company or to a company to register a transfer of shares from one party to the marriage to the other party.
90AE(2) - in s 79 proceedings court may make an order that:
directs a third party to do a thing in relation to the property of a party to the marriage; or
alters the rights, liabilities or property interests of a third party in relation to the marriage.
Family Law Topic 8

31. (7) Third Parties and Competing Claims
(d) Pt VIIIAA (ss 90AA-90AK)
90AE(3) - court may only make an order under 90AE(1)/(2) if:
order is reasonably necessary etc to effect a division of property between the parties
if order concerns a debt of a party to the marriage - it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full
the third party has been accorded procedural fairness
court is satisfied that, in all the circumstances, it is just and equitable to make the order
court is satisfied that the order takes into account the matters mentioned in subsection (4).
Family Law Topic 8

32. (7) Third Parties and Competing Claims
90AE(4) - the matters are as follows:
taxation effect (if any) of the order on the parties to the marriage
the taxation effect (if any) of the order on the third party
social security effect (if any) of the order on the parties to the marriage
third party's administrative costs in relation to the order
if order concerns a debt of a party to the marriage - the capacity of a party to the marriage to repay the debt after the order is made
the economic, legal or other capacity of the third party to comply with the order
if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters - those matters
any other matter that the court considers relevant.
Family Law Topic 8

33. (8) Transactions t0 Defeat Claims
Section s 106B (Part XIII)
power: s 106B(1)(2)
third parties: s 106B(3)
party in collusion: s 106B(4)
*formerly s 85
Family Law Topic 8

34. (9) Ante-Nuptial and Post-Nuptial Settlements
Section 85A
settlement(s) made in relation to the marriage
note since FLAA 2000 definition of ‘financial agreement’ in s 4 does not include a settlement to which s 85A applies
Family Law Topic 8

35. (10) Financial Agreements
(a) Public policy arguments
(b) ‘Maintenance Agreements’ ( )
s 4(1) definitions(s)
ss 86, 87 and 87A (maintenance and property agreements)
Family Law Topic 8

36. (10) Financial Agreements
(c) ‘Binding Financial Agreements’ (2001-) - Part VIIIA
(i) what is a financial agreement
- ss 4, 90A-90D
(ii) when can spouses enter into one
- before marriage: s 90B
- during marriage: s 90C
- after divorce: s 90D
*may cover property and resources
*may cover spousal maintenance
NOTE: new s 90DA: need for a separation declaration!
Family Law Topic 8

37. (10) Financial Agreements
(iii) maintenance requirements
s 90E (children)/s 90F (spouses)
future support? s 90F(1A)
(1) No provision of a financial agreement excludes or limits the power of a court to make an order in relation to the maintenance of a party to a marriage if subsection (1A) applies.
(1A) This subsection applies if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance or benefit.
(2) To avoid doubt, a provision in an agreement made as mentioned in subsection 90C(1) or 90D(1) that provides for property or financial resources owned by a party to the agreement to continue in the ownership of that party is taken, for the purposes of that section, to be a provision with respect to how the property or financial resources are to be dealt with.
Family Law Topic 8

38. (10) Financial Agreements
(iv) when agreements binding:
s 90G
signed by both parties
statement as to independent advice by lawyer
signed annexure by lawyer
original (pty 1) & copy (pty 2)
(v) enforcement? s 90G(2)
(vi) effect of death a party: s 90H
(vii) ‘termination agreement’: s 90J (ie terminating the financial agreement)
Family Law Topic 8

39. (10) Financial Agreements
(viii) setting aside agreement: s 90K
obtained by fraud
void, voidable, unenforceable
impracticable
exception of child-related hardship
(ix) validity, enforceability, effect: s 90KA
(x) stamp duty exemption: s 90L
Also Note:
ss 90M-90Q
Capital gains tax
Family Law Topic 8