Section 79(2) requires that all property settlements be fair and equitable before the arrangements are to be finalised. This requirement was included as the fourth step in the Four Step Process of determining property distribution (the first three steps being identification of assets, determining contributions, and additional factors), by the case Hickey and Hickey.
This extra step was added due to the fact that sometimes the calculation of percentages or ‘equal’ distribution of property value is not the fairest outcome. For example, the husband of a marriage may have an amount saved in his superannuation fund that is equal to all of the tangible assets of the marriage. Technically, if he keeps his superannuation and his wife is allocated all the tangible assets, they are receiving equal property in terms of value, however, as the husband would not have access to his superannuation fund for another 10 years, the outcome becomes unfair and so other arrangements must be made (i.e: the husband will receive some tangible property).
It is up to the discretion of the judge to determine what is just and equitable. As every matter is different, there are no standards stating exactly what is just or equitable, and so it is the circumstances of each case which determine this. The main consideration of the court will be the present and future needs of each party.
According to Hickey, the assessment of what is just and equitable involves:
-
Looking at the effects of the findings under the first 3 steps (ie: what assets are available? What is the size of the contribution made by each party?)
-
Looking at the effects of the determinations as to contributions and section 75(2) of the Family Law Act 1975 (Cth) factors (which include the age, and state of the health of each of the parties; whether any of the parties have care or control of a child; and the income, property and financial resources of the party)
-
Resolving what order is just and equitable in all the circumstances of the case.
An example of justice and equality being taken into account can be observed in the case of Cook v Langford. In this case, the total property pool was $66 million, however, the court found that the husband was only entitled to $1 million based on his overall position and contribution to the assets. This was considered as neither unjust nor inequitable.
How can Prime Lawyers help you?
At Prime Lawyers, we have a number of family lawyers who are experienced in dealing with issues arising during property settlements. They will carefully examine your matter and ensure that the best outcome is achieved for you and that all decisions are just and equitable for each party.