TOPIC 7: PROPERTY DISPUTES (UNMARRIED COUPLES)
Monahan/Young, Chapter 14 and 2008 update
Parkinson and Behrens, Part D Chapter 18
Issues:
In this topic we consider the provisions in Part III of the Property (Relationships) Act 1984
(NSW) in relation to the power of the court to effect a property settlement between parties to
a domestic relationship (which includes a de facto relationship). In doing so, we consider the
relevant statutory requirements and how these factors have been interpreted by courts. We
also consider the impact of the Family Law Amendment (De Facto Financial Matters And
Other Measures) Bill 2008 (Cth) and what this will mean for the future conduct of de facto
cases.
Desired Outcomes:
An appreciation and understanding of the requirements for property adjustment under the
Property (Relationships) Act 1984 (NSW) and the associated powers of the court. Overall,
an understanding of how the court approaches the assessment of contributions made by the
parties to a domestic relationship to both the property and financial resources of the
relationship and their respective contributions in the capacity of homemaker and parent.
NEW DEVELOPMENTS
Changes to de facto legislation has been anticipated for years.
Family Law Amendment (De Facto Financial Matters And Other Measures) Bill 2008 (Cth)
Once this legislation commences de facto relationships which break down after the
commencement of the Act will be dealt with under the Family Law Act. Applies to same sex
and opposite sex relationships. All states except for SA and WA. De facto relationships have
increased in recent years.
GENERAL LAW DEVELOPMENTS
(a) General law remedies
 contract (common law)
 trusts (equity)
 quantum meruit (equity) spousal labour to award compensation payment to family
members for years of labour (This is popular in Canada but not Australia where
constructive trust arguments are frequently used.)
 restitution (equity)
 estoppel (equity)
(b) Promissory estoppel
(c) Equitable doctrine of trusts – express, resulting or constructive
See Monahan and Young text – 14.7 to 14.18
*Muschinski v Dodds (1985) 160 CLR 583.
*Baumgartner v Baumgartner (1987) 164 CLR 137
(2) STATE AND TERRITORY LEGISLATION
 NSW (1984), VIC (1987/2001), NT (1991/2004), ACT (1994), SA (1996), QLD (999),
TAS (2000/2003), WA (2002)
 covers same sex de facto couples
 we will focus on the NSW legislation
(a) Jurisdictional requirements
defining a relevant relationship: ss 4 - 5 (de facto/domestic relationship)
D v McA (1986) 11 Fam LR 214
Hiberson v George (1989) 12 Fam LR 723
relevant courts: ss 9 - 10 (Supreme, District and Local courts)
s134 District Court Act equitable jurisdiction adjustment up to $250,000 (note the limit refers
to the adjustment sought not the size of the pool
residence requirement: s 15 – 16
Flett v Brough [1999] DFC 95-211
Length of relationship
minimum two year relationship: s 17
time limit
commence action within two years of end of relationship: s 18
McGibbon v Marriott [1999] DFC 95-221
Bull v Selmore (2004) 32 Fam LR 650
a final determination (where practicable): s 19
(b) Court’s power to adjust property interests
 s 20 (but note ss 7, 8)
(c) Relevant considerations
(I) s 20(1)(a)(b) factors
 the ‘a’ factors: financial and non-financial contributions
 the ‘b’ factors: homemaker and parent contributions
(ii) any future needs adjustment?
 Dwyer v Kilo (1992) (Handley JA) – reliance, expectation and restitution interest(s)
BUT contrast with Wallace v Stanford (1995)
 no future needs adjustment: see Evans v Marmot (1997)
(iii) global or asset-by-asset? :see Kardos v Sarbutt; Bilious v Mudaliar
(iv) homemaker contribution?
(v) applying s 79 FLA reasoning?: see caution expressed by Clarke JA (Kirby P and
Handley JA agreeing) in Black v Black (1991) 15 Fam LR 109 (at p 113)
Black v Black (1991) 15 Fulmar 109
Dwyer v Kilo (1992) 15 Fam LR 645
Wallace v Stanford (1995) 19 Fam LR 431
Evans v Marmont (1997) 21 Fam LR 760
See Monahan and Young text – paras 14.26 to 14.41
McKean v Page (1999) 25 Fam LR 15, DFC 95-218
Attwells v Campbell [2000] DFC 95-229
Howlett v Neilson (2005) 33 Fam LR 402
Baker v Towle [2008] NSWCA 73
Dunstan v Rickwood (No 2) [2007] NSWCpraA 266
(d) Agreements
 defined: s 44 (but distinguish domestic relationship and termination agreements)





public policy?: s 45
contract law?: s 46
certification: s 47
non-compliance and enforceability?: s 48
variation/setting aside an agreement: s 49
Seidler v Schallhofer (1982) 8 Fam LR 598
Roy v Sturgeon (1986) 11 Fam LR 271
Wilcox v Sain (1986) 11 Fam LR 302
Van Jole v Cole [2000] DFC 95-228
Family Law Amendment (De Facto Financial Matters And Other Measures) Bill 2008
(Cth)
Several advantages to being dealt with under the FLA. Specialist courts.
Important issues will continue to be:
 Nature of de facto relationship when it begins and ends
 Threshold issues continue to be similar – residential requirements, length of
relationship, time limit
Important to note that close personal relationships not covered by the new legislation
Advantages new legislation:
 S75(2) factors
 Superannuation
 Third parties
 Specialist court
 maintenance
Section 79 FLA v Section 20 PRA: Comparison Table
copyright 1994 G. Monahan revised 1999
Section 79
Family Law Act 1975 (Cth)
Section 79(1) :
... the court may make such order
as it considers appropriate...
Section 79(2) :
... the court shall not make an order...
unless it is satisfied that, in all the circumstances, it is
just and equitable...
Section 79(4)(a) :
(court shall take into account)
... the financial contribution made
directly or indirectly...
acquisition, conservation, or improvement...
of any of the property...
whether or not that... property has... ceased to
be the property of the parties...
Section 79(4)(b) :
(court shall take into account)
... the non-financial contribution made
directly or indirectly...
acquisition, conservation, or improvement...
of any of the property...
whether or not that... property has... ceased to
be the property of the parties...
Section 20
Property (Relationships) Act 1984 (NSW)
Section 20(1) :
... a court may make such order...
having regard to...
Section 20(1) :
... a court may make such order...
as to it seems just and equitable
having regard to ...
Section 20(1)(a) :
(court having regard to)
... financial and non-financial contributions made
directly or indirectly...
acquisition, conservation, or improvement...
of any of the property...
or to the financial resources of the parties or
to either of them...
Section 20(1)(a) :
(court having regard to)
... financial and non-financial contributions made
directly or indirectly...
acquisition, conservation, or improvement...
of any of the property...
or to the financial resources of the parties or to either of
them...
Section 79(4)(c) :
(court shall take into account)
... the contribution made...
to the welfare of the family
constituted by the parties... and any children...
including any contribution made in the capacity of
homemaker or parent
Section 79(4)(d) :
... the effect of any proposed order upon the
earning capacity of either party...
Section 79(4)(e) :
... the matters referred to in sub-section 75(2)
(including financial resources)
Section 79(4)(f) :
... any order made under this Act...
affecting a party... or a child of the marriage
Section 79(4)(g) :
... any child support...
Section 20(1)(b) :
(court having regard to)
... the contributions, including any contributions
made in the capacity of homemaker or
parent...to the welfare of the family...
constituted by the partners and... a child of the
parties ... [or] a child accepted by... them...
Section 20:
NO
EQUIVALENT
Section 20:
NO DIRECT EQUIVALENT - although s 20(1)(a)
allows the court to consider financial resources
Section 20:
NO
EQUIVALENT
Section 20:
NO EQUIVALENT
COMPARISON Property (Relationships) Act and Family Law Act
PRA definition de facto relationship s4
FLA definition of de facto relationship s4AA
(1) A person is in a de facto relationship with
(1) a de facto relationship is a relationship
between two adult persons:
another person if the persons are not legally
who live together as a couple, and
married to each other; and
who are not married to one another or related by
the persons are not related by family
family.
having regard to all the living together on a
In determining whether two persons are in a de
genuine domestic basis.
facto relationship, all the circumstances of the
Working out if persons have a relationship as a
relationship are to be taken into account,
couple those circumstances may include any of:
(a) the duration of the relationship,
(a) the duration of the relationship;
(b) the nature and extent of common residence,
(b) nature and extent of their common residence;
(c) whether or not a sexual relationship exists,
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or
(d) the degree of financial dependence or
interdependence, and any arrangements for
interdependence, and any arrangements for
financial support, between the parties,
financial support, between them;
(e) the ownership, use and acquisition of
(e) the ownership, use and acquisition of their
property,
property;
(f) degree of mutual commitment to a shared life,
(f) degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered
(g) the care and support of children,
under a prescribed law of a State or Territory as a
(h) the performance of household duties,
prescribed kind of relationship;
(i) the reputation and public aspects of the
relationship.
(h) the care and support of children;
(3) No finding in respect of any of the matters
(i) the reputation and public aspects of the
mentioned in subsection (2) (a)-(i), or in respect
relationship.
of any combination of them, is to be regarded as
(3) No particular finding in relation to any
necessary for the existence of a de facto
circumstance is to be regarded as necessary in
relationship, and a court determining whether
deciding whether the persons have a de facto
such a relationship exists is entitled to have
relationship.
regard to such matters, and to attach such weight
(4) A court determining whether a de facto
to any matter, as may seem appropriate to the
relationship exists is entitled to have regard to
court in the circumstances of the case.
such matters, and to attach such weight to any
(4) Except as provided by section 6, a reference
matter, as may seem appropriate to the court in
in this Act to a party to a de facto relationship
the circumstances of the case.
includes a reference to a person who, whether
(5) For the purposes of this Act:
before or after the commencement of this
(a) a de facto relationship can exist between 2
subsection, was a party to such a relationship.
persons of different sexes and between 2
persons of the same sex; and
(b) a de facto relationship can exist even if one
of the persons is legally married to someone else
or in another de facto relationship.
When 2 persons are related by family
PRA 15 Prerequisites for making of orderresidence within State etc
- at least one party resident in NSW on day
application made and
- both parties were resident within New South
Wales for a substantial period of their domestic
relationship, ( if reside in NSW for at least 1/3
relationship will be taken to be substantial) or
- applicant made substantial contributions
17 Prerequisites for making of order-length of
relationship etc
- court won’t make an order unless parties been
in a relationship for at least 2 years except where
- that there is a child of the parties
- that the applicant made substantial
contributions not adequately compensated for or
has the care and control of a child of the
respondent,
and that the failure to make the order would result
in serious injustice to the applicant.
FLA prerequisites s90SD, 90SK, 90UA
- at least one party resident in NSW on day
application made and
- both parties were resident within participating
state for at least 1/3 relationship or
18 Time limit for making applications
Application can only be made within the period of
2 years after the date on which the relationship
ceased
A court may, at any time after the expiration of
the 2 year period where the court is satisfied,
having regard to such matters as it considers
relevant, that greater hardship would be caused
to the applicant if that leave were not granted
than would be caused to the respondent if that
leave were granted.
S44(5) and (6)
Must make application within 2 years of end
relationship.
Court may grant leave if satisfied hardship to
party or child if leave not granted
Or if maintenance application, party’s
circumstances at end of standard application
period unable to support self without income
tested benefit, allowance or pension
S90SB prerequisite for making order – length of
relationship
- court won’t make an order unless parties been
in a relationship for at least 2 years except where
- that there is a child of the parties
- that the applicant made substantial
contributions
- and that the failure to make the order would
result in serious injustice to the applicant.
- relationship registered under prescribed law
state or territory