Circumstances Where the Court Won’t Alter Property of a Marriage
The general answer to this is maybe. However, it does not have to. There are particular circumstances where a Court will not alter the property of a marriage. Two of these circumstances include where a party is commencing out of time and cannot satisfy the court that it should exercise its discretion and allow the claim and another is where, on the facts, the Court should not exercise its discretion to interfere with the property and equity position of the parties at all. There is some guidance as to how the court approaches those positions in case law and legislation.
Challenging Assumptions: Long Marriages and Court Access
Some people, including some practitioners, assume that a long marriage is a key to opening the door to the Court. That is simply not the case.
Understanding the Principle of Judicial Restraint in Family Law
The Family Law Act 1975 (Cth) provides that judges must not alter property rights on the breakdown of the relationship unless satisfied that it is just and equitable to do so. This is known as the principle of judicial restraint. In the past, and prior to the 2012 decision of the High Court in Stanford v Stanford, this principle was given almost no effect.
The High Court provided instructive guidance about what is ‘just and equitable’ in the case of Stanford v Stanford [2012] HCA 52. The High Court emphasized that before exercising its discretion under the provision, the courts should first consider if there is a “principled reason for interfering with the existing legal and equitable interests of the parties to the Marriage”.
Debunking Relationship Length as a Guarantee for Property Distribution
So, don’t make an assumption that because a relationship or marriage exists or is a long one that you will obtain a distribution. The court can and does entertain applications that there is no principled reason for the Court to interfere with the legal and equitable interest of the parties.
The Importance of Seeking Expert Legal Advice in Property Matters
You need to seek carefully considered advice from an experienced legal practitioner as to your rights and have a preliminary assessment and advice as to what a court will consider and what the likely range of outcomes will be as not doing so can be very very costly.
In conclusion, understanding the circumstances under which the court will or will not alter the property in a marriage is crucial. It is important to debunk assumptions and recognise that relationship length alone does not guarantee property distribution. Seek expert legal advice from Michael Vassili Lawyers to protect your rights in family law matters. Don’t leave it to chance – schedule a consultation today.
