Thursday, 15 October 2009

You think property settlement is bad here, try England

For all those who think that property settlement rules in Australia are hard to understand, be thankful you don't live in England or Wales.

Here the rules are relatively simple:
  1. identify the property and value it
  2. assess financial and non-financial contributions of each of the parties
  3. weigh up any future factors under section 75(2) of the Family Law Act
  4. come up with a just and equitable (or fair) result

Sometimes, just sometimes there might also be an order for spousal maintenance. In the scheme of things these are pretty rare. Section 81 of the Family law Act makes plain that there should be a clean break principle after people split up. This in itself helps discourage spousal maintenance claims.

And while individual judges might come up with different results, above all of them sit the august members of the Full Court of the Family Court (and above them also sit the High Court) hearing appeals and giving guidance to all family law judges and magistrates about how they should decide their cases.

Contrast this with the position in England and Wales, where according to The Times:

  • there is no real distinction between property settlement and spousal maintenance, meaning that any result is possible.
  • the north of the country is seen as favourable to men, and the south to women.
  • lawyers are forum shopping- so if you are a man you might try your luck in the north, but if a woman, try your luck in London.

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