Family Law – Determining Property Disputes

The law in relation to determining property disputes under s 79 of the Family Law Act (1975) (Cth) has been recently considered by the High Court of Australia in Stanford -v- Stanford (2012) 293 ALR 70; [2012] HCA 52; (2012) FLC 93-518 and by the Family Court of Australia in Sebastian & Sebastian (No 5) [2013] FamCA 191 (28 March 2013) per Young J.

A Court determining property disputes under s 79 of the Family Law Act (1975) (Cth) is required to:

• Identify the existing legal and equitable interests in property of the parties;
• Identify the divisible property of the parties;
• Evaluate whether it is just and equitable to pronounce a property settlement order having regard to the existing interests of the parties;
• Assess what orders should be made upon a consideration of all of the s 79(4) factors;
• Assess what orders should be made upon a consideration of all of the matters referred to in s 75(2); 1 and
• Ensure that the final proposed percentage division and orders are just and equitable 2

It is important to appreciate that the evidence before the court must indicate an order adjusting the interests of the matrimonial property is warranted in the specific circumstances of the case or else the court will not make any order adjusting the property interests of the parties.

1.  See Sebastian & Sebastian (No 5) (2013) FamCA 191 (28 March 2013) per Young J at (144) and (152) 
2.  See Sebastian & Sebastian (No 5) (2013) FamCA 191 (28 March 2013) per Young J at (160)