The Love Doesn’t Need To Be Gone
The recent decision of Stanford [2011] FamCAFC 208 has caused a stir about when the Family Court should become involved in a couple’s affairs. In this case an elderly couple were married and intended to remain so but were living apart because of the wife’s medical state.
One of the wife’s children brought an application on behalf of her mother to gain a cash sum for a retirement home bond from the husband. This application was the same as former spouses bring to divide their assets after their marriage breaks down. The husband opposed this as any cash payment would require the family home which he lived in to be sold.
The two arguments considered at trial was whether the Court had jurisdiction despite the parties wishing to remain married and, whether it was appropriate to divide the couple’s assets given they intended to remain married.
The Court has historically made it clear it has the power to get involved in disputes between married couples whether they were separated or not. In this case this long standing view was not argued and the Court explained it had the power to be involved. This power stems from how the
Family Law Act 1975 (Cth) has been drafted by the Commonwealth government.
The real argument was whether it was appropriate to divide property where the parties wanted to remain married. The appropriateness issue was the clincher for the Court. The Court accepted it was not appropriate for a Court to divide assets where other legal options under the
Family Law Act were available to assist the wife to maintain herself. It was for that reason the Court allowed the appeal and did not divide the assets.
The Family Court of Australia has never been a Court that requires a marriage to be over before it can be involved. However a marriage breakdown is typically the practical cause behind a spouse bringing court action. The Court has always had power in particular circumstances to deal with disputes between parties because of their marriage, not because it has broken down. This decision is a helpful reminder that the Family Court of Australia is a specialist Court, not just a Court for the broken hearted.
Should you wish for us to assist you with any family law issues or queries in relation to this decision please contact our family law team, Trent Waller or Daniel Hallam on 07 3236 2900.
Posted on 19th December 2011
