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Published online by Cambridge University Press: 24 January 2025
In response to a recommendation of the Joint Select Committee on the Family Law Act, the Government has announced the appointment of an ad hoc committee of enquiry to study the implications of introducing a full matrimonial property regime in Australia. This committee will recommend whether there should be a fixed set of rules determining the ownership of property of married persons. Such a set of rules could apply during the subsistence of marriage, upon dissolution of marriage or both. Adoption of a set of rules governing property rights during the subsistence of marriage would displace the ordinary law of property and the special doctrines developed by the courts of equity as applicable to married persons. Adoption of fixed rules governing re-allocation of property upon dissolution of marriage would displace the discretionary system as applied by courts exercising jurisdiction under the Family Law Act 1975 (Cth). Since there is a world-wide movement away from fixed rules determining property interests during marriage, legislation to this effect is unlikely.
The writer acknowledges the helpful comments made by Mr Justice P E Nygh of the Family Court of Australia on an earlier draft of this article.
1 Family Law in Australia: A Report of the Joint Select Committee on the Family Law Act (1980) Vol 1, Recommendation 36.
2 Statement by the Attorney-General, Sen Deb 1981, Vol 89, 1111.
3 These doctrines include the presumption of resulting trust, the presumption of advancement and the presumption of gift where a wife's income is used by her husband with consent.
4 O Kahn-Freund, , “Matrimonial Property–Some Recent Developments” (1959) 22 Mod L Rev 241, 245CrossRefGoogle Scholar states that “a glance at the recent comparative surveys [into statutory systems of community property] … must convince any reader that [such systems] may be a lawyer's dream and a client's nightmare”. See also Family Law Reform Ministry of the Attorney-General, Ontario, Canada 2.
5 Women's Electoral Lobby, Discussion Paper on Reform of Marital Property Laws in Australia by Means of a System of Community Property (1981), noted (1981) 55 AU 716.
6 S 81 enacts that it is the duty of the court, as far as practicable, to make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.
7 This requirement is implicit in s 72 and s 73 which render each spouse liable to maintain one another, subject to certain conditions, and to maintain any child of the marriage. See also s 61(1).
8 Women's Electoral Lobby, op cit n 5, sections 3.2, 3.14, 4.3, 4.8, 4.11.
9 The Family Law Act became operative 5/1/76; the Matrimonial Property Act became operative 1/2/77.
10 The preamble to the New 2.ealand legislation states:
An Act to reform the law of matrimonial property; to recognize the equal contribution of husband and wife to the marriage partnership; to provide for a just division of the matrimonial property between the spouses when their marriage ends by separation or divorce, and in certain other circumstances, while taking account of the interests of any children of the marriage; and to reaffirm the legal capacity of married women.
11 A H Angelo, W R Atkin, , “A Conceptual and Structural Overview of the Matrimonial Property Act 1976” (1977) 7 NWL Rev 237Google Scholar.
12 Crawford and Crawford (1919) PLC 90-647; 5 Fam LR 106. Questions of legal title could be relevant as evidence of contribution.
13 Below pp 000, 000.
14 S 75 sets out the factors to be taken into consideration in proceedings instituted under s 74 for a maintenance order.
15 Above n 6.
16 This “shopping-list” approach has been criticized by J M Eekelaar, , “Some Principles of Financial and Property Adjustment on Divorce” (1979) 95 LQR 253Google Scholar. See also Ontario LRC, , Report on Family Law (1974) Pt IVGoogle Scholar.
17 In W and W (1980) PLC 90-872; 6 Fam LR 538, it was held that a claim for maintenance must be judged in the light of the proposed property order. Bignold and Bignold (1979) PLC 90-620, 78,211; 5 Fam LR 97, 104.
18 Barkley v Barkley (1977) PLC 90-216; 1 Fam LR 11,554.
19 (1977) PLC 90-204; 2 Fam LR 11,628.
20 (1977) PLC 90-217; 3 Fam LR 11,211.
21 (1836) 5 LJ (NS) Eq 87, 90.
22 Kelly and Kelly (No. 2) (1981) FLC 91-108, 76,802.
23 Crapp and Crapp (1979) FLC 90-615; 5 Fam LR 47.
24 Petterson and Petterson (1979) FLC 90-717; 5 Fam LR 628.
25 W and W (1980) FLC 90-872; 6 Fam LR 538; cf Carter and Carter (1981) FLC 91-061.
26 Matrimonial Property Amendment Act 1980. An Act which modifies the law as stated by the Court of Appeal in Reid v Reid [1979] 1 NZLR 572.
27 Castle v Castle [1977] 2 NZLR 97.
28 R L Fisher, , “Are Husbands Getting a Fair Share?” [1978] NZLJ 375Google Scholar.
29 It is apposite to quote R L Fisher, The Matrimonial Property Act 1976 (1977) v: M Marc Ancel could well have had us in mind when he said of the French system before its reform in 1965:
'Matrimonial property law is one of the most developed as well as one of the most technical parts of the civil law of France. It would be no exaggeration to say that the French matrimonial law corresponds in some respects in its extreme complexity and technicality to the law of real property in England'.
If it has achieved nothing else, the new Act shows that we can foot it with the French in producing complexity.
30 P Tahmindjis, , “The Approach to Superannuation Entitlements in Re-allocation of Matrimonial Property” in H A Finlay, R Bailey, (eds), Property And Finance In Family Law: Proceedings of the Canberra Law Workshop III (1981) 59Google Scholar. The Family Law Amendment Bill 1981 cl 26 seeks to alter s 75(2) (f) of the principal Act by rendering eligibility to any superannuation fund or scheme a matter to be taken into account when considering maintenance applications. Similarly, cl 27 of this Bill seeks to alter s 79 of the principal Act by making a relevant consideration under this section, the possibility of a significant change occurring in the financial circumstances of either or both of the parties to the marriage. Such a “change” may occur by reason that the party to the marriage (a) is a contributor to a superannuation fund or scheme, or (b) may become entitled to property as the result of the exercise in his favour, by the trustee of a discretionary trust, of a power to distribute trust property.
31 Matrimonial Property Act 1976 s 13.
32 Willett v Willett (1976) FLC 90-022; 1 Fam LR 11,242.
33 Currie and Currie (1976) FLC 90-101; 2 Fam LR 11,307; McDougall and McDougall (1976) FLC 90-076, 75,356; 1 Fam LR 11,581, 11,586.
34 The Family Law Amendment Bill 1981 cl 27 seeks to alter s 79(4) of the principal Act by inserting another sub-section which requires the court to take into consideration the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
35 Pastrikos and Pastrikos (1980) PLC 90-897; 6 Fam LR 497.
36 Carter and Carter (1981) FLC 91-061, 76,489; 7 Fam LR 41, 48.
37 The words “divisible” and “non-divisible” assets are used explicitly in Pickard and Pickard (1981) PLC 91-034, 76,313. By implication the court has used a similar technique in Wardman and Hudson (1978) 33 FLR 196; (1978) FLC 90-466; 5 Fam LR 889.
38 W and W (1980) PLC 90-872, 75,527; 6 Fam LR 538, 548.
39 Olliver and Olliver (1978) PLC 90-499; 4 Fam LR 360.
40 Matthews and Matthews (1980) FLC 90-887; 6 Fam LR 142.
41 Crawford and Crawford (1979) FLC 90-647; 5 Fam LR 106.
42 (1981) 7 Fam LR 483, 485.
43 James and James (1978) FLC 90-487; 4 Fam LR 401.
44 Kelly and Kelly (No 2) (1981) FLC 91-108, 76,803; 7 Fam LR 762, 769. See also Bailey and Bailey (1978) FLC 90-424, 77,146-77; 4 Fam LR 86, 93-95. Evatt CJ and Murray J included as part of the “broader financial resources of a party” the benefits which a party might receive under the terms of a discretionary trust or a superannuation scheme even in the absence of present entitlement; see also Crapp and Crapp (1979) FLC 96-615, 78,176, 78,183-184; 5 Fam LR 47, 95, 66-67. In Tiley and Tiley (1980) FLC 90-898; 6 Fam LR 528, the Full Court (Evatt CJ, Emery SJ and Treyvaud J) treated as part of the husband's financial resources the assets of a family company and of a family trust which it found was in his “complete control”.
45 Kelly and Kelly (No 2) (1981) FLC 9-108, 76,807; 7 Fam LR 762,774.
46 Tuck and Tuck (1981) FLC 91-021, 76-219; 7 Fam LR 492, 498.
47 The Matrimonial Property Act 1976 (NZ) incorporates a similar power:
Under s 33 the Court has power to make a wide range of orders including orders which may require a spouse to have resort to his separate property to enable the parties' respective shares in the matrimonial property to be effectively realised. In particular, under s 33(3)(n) one spouse may be called upon to transfer title or make a cash payment from his own separate resources. This may be an especially appropriate remedy where it is thought desirable for one spouse to buy out the other spouse's interest in an important capital item such as the matrimonial homeor where the other spouse wants to capitalise his interest.WR Atkin, “The New Regime of Family Property” [1977] NZLJ 81, 81.
48 Kelly and Kelly (No 2) (1981) FLC 91-108, 76,808; 7 Fam LR 762,775.
49 (1979) FLC 90-629, 78,272-3; 5 Fam LR 146, 148.
50 (1978) 33 FLR 196; FLC 90-466. See also McLeod and Somlo (1976) FLC 90-073; Potthoff and Potthoff (1978) FLC 90-475; 4 Fam LR 267; Crawford and Crawford (1979) FLC 90-647; 5 Fam LR 106.
51 Eg Woolley and Woolley (No 2) (1981) 48 FLR 328; 6 Fam LR 577.
52 The Privy Council pointed out in Haldane v Haldane [1976] 2 NZLR 715, that if the performance of duties in the matrimonial home could be regarded as a contribution to the matrimonial home, those activities could by the same logic amount to a contribution to other matrimonial property.
53 Matthews and Matthews (1980) FLC 90-887, 75,600; 6 Fam LR 142, 144.
54 Albany and Albany (1980) FLC 90-905; 6 Fam LR 461.
55 W and W (1980) FLC 90-872, 75,526; 6 Fam LR 538, 547.
56 (1978) 33 FLR 196, 202; (1978) FLC 90-466, 77,384.
57 Quinn and Quinn (1979) FLC 90-677.
58 Pastrikos and Pastrikos (1980) FLC 90-897; 6 Fam LR 497.
59 Aroney and Aroney (1979) FLC 90-709, 78,789; 5 Fam LR 535, 544.
60 Albany and Albany (1980) FLC 90-905, 75,721; 6 Fam LR 461, 470.
61 (1979) FLC 90-709, 78,790; 5 Fam LR 535, 545.
62 Ibid.
63 Pickard and Pickard (1981) FLC 91-034, 76,314.
64 Sieling and Sieling (1979) PLC 90-627, 78,264; 6 Fam LR 713, 727.
65 (1967) 116 CLR 366, 379 ff.
66 Pastrikos and Pastrikos (1980) PLC 90-897, 75,653; 6 Fam LR 497, 499.
67 Tuck and Tuck (1981) FLC 91-021; 7 Fam LR 492.
68 Aroney and Aroney (1979) PLC 90-709, 78,790; 5 Fam LR 535, 545.
69 Pastrikos and Pastrikos (1980) FLC 90-897; 6 Fam LR 497.
70 Dench and Dench (1978) PLC 90-469; 4 Fam LN No 39.
71 Anast and Anastopoulos (1981) 7 Fam LR 728, 733.
72 Crawford and Crawford (1979) FLC 90-647, 78,411; 5 Fam LR 106,110.
73 Aroney and Aroney (1979) FLC 90-709, 78,790; 5 Fam LR 535, 545.
74 Woolley and Woolley (No 2) (1981) FLC 91-011, 76,142; 6 Fam LR 577, 586; cf Tiley and Tiley (1980) FLC 90-898, 75,661.
75 Aroney and Aroney (1979) FLC 90-709, 78,790; 5 Fam LR 535, 545.
76 (1980) FLC 90-887, 75,601; 6 Fam LR 142, 145-146.
77 Kelly and Kelly (No 2) (1981) FLC 91-108, 76,808.
78 Malcolm D Broun, “Financial Implications of Family Law” (1981) 55 ALI 424, 433.
79 Foss v Foss [1977] 2 NZLR 185.
80 Eg Cantarella and Cantarella (1976) FLC 90-056; 1 Fam LR 11,483. Note too, H and H (1981) 7 Fam LR 451, in which the wife was awarded the only substantial asset of the parties (viz the matrimonial home) on the basis of her need to accommodate herself and some of her children.
81 I WP McCall, , “Family Law and Property” in McCall, I W P, Family Law and Property: Three Essays (1980) 13Google Scholar.
82 Kevin J Gray, , Re-allocation of Property on Divorce (1977) 279Google Scholar.
83 (1981) 6 Fam LR 577, 585.
84 (1980) FLC 90-905.
85 Reid v Reid [1979] 1 NZLR 572.
86 Rebecca J Bailey, , “Principles of Property Distribution on Divorce–Compensation, Need or Community?” (1980) 54 ALJ 190, 195Google Scholar.
87 Aroney and Aroney (1979) FLC 90-709, 78,784; 5 Fam LR 535, 538.
88 CA Reich, , “The New Property” (1964) 73 Yale LJ 733CrossRefGoogle Scholar.
89 Ellen Goodman, , “The Development of the Law of Matrimonial Property–An Historical Perspective” (1981) 16 Aust J of Social Issues 175, 185CrossRefGoogle Scholar.
90 Troy Duster, , The Legislation of Morality (New York, Free Press, 1970)Google Scholar.
91 Yvonne Cripps, , “Contracting out of the Matrimonial Property Act 1976” (1978) 9 VUWL Rev 101Google Scholar.