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Published online by Cambridge University Press: 24 January 2025
The author first discusses the statutory framework which has led to the divided jurisdiction over matrimonial property in Australia. This is followed by an examination of the problems that this division creates, such as delay in settling property disputes, jurisdictional conflict when one spouse unilaterally seeks a “State” remedy, and evasion of the intention behind the legislation to divide matrimonial property equitably between the parties. Some of the mechanisms like gifting and trust arrangements by which a spouse may rearrange his affairs to insulate himself from the jurisdictional reach of the Family Court are examined. The limitations of the injunction power under s. 114 of the Family Law Act 1975 (Cth) are exposed and following this the author speculates about the scope of s. 85 of the Act which attempts to empower the Court to set aside transactions designed to avoid the provisions of the Act. He concludes that the powers of the Family Court are uncertain and limited and that the only real solution would lie in a reference of power in this area to the Commonwealth by the States.
1 See Crawford, “The New Structure of Australian Courts”, (1978) 6 Adelaide Law Review 201, 205-210 and Walker, “Matrimonial Property Proceedings–Problems of a Divided Jurisdiction” (1978) 6 Adelaide Law Review 253, 257-258. Parts of the latter article have been included as background.
2 Hereafter referred to as “the Act”.
3 Matrimonial Causes Act 1959 (Cth), s. 5.
4 E.g. Law of Property Act 1936-1975 (S.A.), s. 105.
5 Family Law Act 1975 (Cth), s. 78.
6 Id, ss. 79(3), 15(1).
7 (1976) 9 A.L.R. 103 (hereafter referred to as the Family Law Act Case).
8 Id. 144.
9 Wirth v. Wirth (1956) 98 C.L.R. 228; Martin v. Martin (1959) 110 C.L.R. 297 and Hepworth v. Hepworth (1963) 110 C.L.R. 309.
10 Marriage Act 1958-1977 (Vic.), s. 161.
11 See s. 79(4) (b) of the Act which gives the Family Court power to take into account non-financial contributions to property and, in particular, “any contribution made in the capacity of homemaker or parent”. A good example of the prevalent and liberal reading given to s. 79(4)(b) is provided by In the Marriage of Zappacosta (1976) 26 F.L.R. 412. In In the Marriage of Rainbird (1977) F.L.C. (CCH) 90-256 Wood J. construed s. 79(4)(b) strictly holding that there must be some nexus between the homemaking and the acquisition, conservation or improvement of property. The latter reading of s. 79(4)(b) is perfectly valid but could produce unfortunate results (i.e. in the case where the spouse's only contribution has been as a homemaker or parent). It is submitted that s. 79(4)(b) should be amended in order to sever the homemaking-property nexus.
12 the Marriage of Read (1976) 27 F.L.R. 392.
13 In the Marriage of Tansell (1977) F.L.C. (CCH) 90-280 (hereafter referred to as Tansell's Federal Case).
14 In 1977 delays on undefended applications for dissolution of marriage ranged from nine weeks (Sydney) to five months (Melbourne and Launceston). Delays on defended applications ranged from eight months (Hobart) to over two and one half years (Melbourne). S.Deb. 1977, Vol. 75, 2337.
15 Tanse/l's Federal Case and Tansell v. Tansell (1977) F.L.C. (CCH) 90-280 (hereafter referred to as Tansell's State Case).
16 See Walker, op. cit. 264-270. The majority judgment in In the Marriage of Seiling (1979) F.L.C. (CCH) 90-627 contains a more radical solution to this problem. See Postscript.
17 (1977) 27 F.L.R. 513.
18 (1976) 26 F.L.R. C.N. 11.
19 (1977) 29 F.L.R. 46.
20 (1835) 5 L.J. Ch. 87, 90.
21 Supra n. 19, 55.
22 Id. 52.
23 (1977) F.L.C. (CCH) 90-253.
24 (1977) 30 F.L.R. 93.
25 Id. 96.
26 Palk and Bailey, “'Property' and Discretionary Trusts under the Family Law Act, 1975-1976” (1977) 6 Adelaide Law Review 131.
27 (1977) F.L.C. (CCH) 90-324.
28 Id. 76,706.
29 Ibid.
30 Ibid.
31 Ibid.
32 [1974) Ch. 17.
33 (1978) 20 A.L.R. 199. As to the position of divorced wives whose former spouse contributed to the Superannuation Act 1976 (Cth), see, Anon, “Unfair treatment by Superannuation Act 1976 (Cth) of wives of contributors divorced under Family Law Act 1975 (Cth)” (1977) 51 AL.J. 673.
34 Id. 206.
35 Id. 207. Italics added.
36 Id. 220.
37 (1978) F.L.C. (CCH) 90-453.
38 (1978) F.L.C. (CCH) 90-460.
39 Id. 77,350.
40 [1955] 3 All E.R. 296.
41 Supra n. 38, 77,352-77,353. Since the writing of this article the husband's appeal to the Full Court of the Family Court has been reported–see In the Marriage of Crapp (1979) F.L.C. (CCH) 90-615. The Full Court held that the husband's interest in the superannuation scheme could not be regarded as “property” within the meaning of the Act but should be taken into account in determining what order should be made in respect of the other property of the parties. The '"Bailey solution” is thus preserved but the decision of the Full Court in Crapp indicates that only rarely will a party's interest in a superannuation scheme be capable of being regarded as “property” within the meaning of the Act.
42 (1967) 116 C.L.R. 366.
43 (1976) 10 A.L.R. 251.
44 (1978) 16 A.LR. 220. In Seiling the majority of the Full Court of the Family Court held that, in a proper case, section 114(1) could be used to preserve prospective rights under section 79. See Postscript.
45 Id. 230.
46 If considerable sums of money were at stake it is possible that the disponor spouse might be prepared to run the risk of being caught bys. 108 or s.114(4) of the Act.
47 Supra n. 15, 76,633.
48 But see supra n. 46. See also the discussion of Seiling in the Postscript.
49 (1976) 11 A.L.R. 569.
50 Nygh, Guide to the Family Law Act 1975 (2nd ed., 1978) 160.
51 Supra n. 43.
52 (1976) 27 F.L.R. 216.
53 (1977) 28 F.L.R. 210.
54 See supra n. 46.
55 On this law see, Bailey, “Legal Recognition of De Facto Relationships” (1978) 52 A.L.J. 174, 178-182. See, generally, Cretney, Principles of Family Law (2nd ed., 1976) 262-270.
56 Cf. s. 42 Matrimonial Property Act 1976 (N.Z.).
57 (1979) F.L.C. (CCH) 90-627.
58 Id. 78, 264.
59 Id. 78, 263.
60 (1978) F.L.C. (CCH) 90-512.
61 (1978) F.L.C. (CCH) 90-525.
62 (1979) F.L.C. (CCH) 90-626.
63 (1979) F.L.C. (CCH) 90-619.
64 [1888] 40 Ch.D. 312.
65 (1956) 99 C.L.R. 362.
66 [1978] 1 W.L.R. 255.
67 [1978] 1 W.L.R. 243.
68 [1975] Q.B. 326, 329.