After the High Court decision in Stanford –v- Stanford in 2012, we have seen a number of Full Court decisions relating to the exercise under Section 79 for alteration of interest in property between separated couples. More recently, a Full Court decision of Chancellor –v- McCoy is of significant importance.
Nikila’s article is reproduced below
What is Mine is Mine and What is Yours is Yours
“I do…for richer or for poorer” is no longer the reality in modern relationships. In recent decades there has been a rise of relationships where the parties remain emotionally together but financially separate.
The unhinging of the notion of “what is mine is ours” first arose in the landmark decision of Stanford v Stanford. The High Court of Australia held that “community of ownership arising from marriage has no place in the common law.” There is no assumption that the Court will make orders for property adjustment merely because there has been a breakdown of a marriage or de facto relationship.
In the typical breadwinner/homemaker scenario, upon separation a property alteration between the parties is generally necessary to effect a just and equitable outcome as the parties are no longer receiving the benefit of joint assets and income they have built up together during their relationship. The same cannot be said for parties who have had an intention to remain financially separate and structured their financial lives accordingly throughout their relationship.
It appears that the results of Stanford are coming to light in recent case law. There is a recognition that the breadwinner/homemaker scenario is no longer an accurate depiction of the finances of the modern family.
Courts have started to more closely examine how parties have structured their financial affairs throughout their relationship, even long relationships. Of particular interest is the recent Full Court decision in Chancellor v McCoy, where the Court highlighted the following factors in coming to the conclusion that it was not just and equitable to make Orders for property settlement upon the breakdown of a de facto relationship lasting approximately 27 years:-
- the parties maintained sole bank accounts;
- the parties purchased real property in their own names and were solely responsible for all expenditure on their own real property;
- the parties contributed equally to household bills and groceries;
- each party was responsible for their own debts;
- there was a lack of joint financial decision making;
- the parties did not execute wills leaving their estate to the other party or name each other as beneficiaries on their superannuation policies; and
- neither party had a knowledge of the financial position of the other party.
Where there is evidence before the Court that attracts the principles of Stanford, being that the parties, consciously or unconsciously, have conducted their relationship without intertwining their finances, the Court appears to be of the view that it will not be just and equitable to make a property adjustment, even in long relationships.