Australian family property law: ‘Just and equitable’ outcomes?

Family law and financial matters
Wednesday 25 July, 1130 – 1150


Belinda Fehlberg
University of Melbourne

Lisa Sarmas
University of Melbourne

In this paper, we focus on the broad discretion under Australia’s Family Law Act 1975 (Cth) (FLA) to reallocate interests in property of spouses and separating de facto partners. We look at previous empirical research on the discretion’s operation and consider options for change. We identify that there is an absence of up-to-date empirical research data on the discretion’s operation, and that there is potential risk and possibly limited effect associated with legislative reform in this area. Yet the consistent empirical research finding is that women, particularly mothers with dependent children, experience significant economic disadvantage post-separation.
This leads us to see some merit in legislative reform that identifies the need to provide for the material and economic security of the parties and their dependent children as key factors to be considered when making property orders. We suggest that the structure of the current legislation places too great a focus on the parties’ contributions and that a reformulation to prioritise the provision of suitable housing for dependent children, followed by consideration of the parties’ material security would increase the likelihood of outcomes that are more fundamentally consistent with the key legislative requirement that “The court shall not make an order… unless it is satisfied that, in all the circumstances, it is just and equitable to make the order” (FLA s 79(2)/90SM(3)).