Chancellor & McCoy: No property order for couple of 27 years

A recent decision in the Family Court has found that no order for property settlement was to be made in a case involving the separation of a de facto same sex couple of 27 years. The court in Chancellor & McCoy 2016 FamCAFC 256 (2 Dec 2016) denied an appeal against the finding of the Trial Judge, reaffirming that it was not ‘just and equitable’ to make any order altering existing property interests, as the parties had kept their financial affairs separate throughout the relationship.

The parties lived together as a de facto couple between 1983 and 2010, with similar career paths and property interests. However the respondent started making voluntary contributions to her superannuation in 1999 by way of salary sacrifice. At the time of trial this resulted in the respondent’s combined assets and super being worth more than double that of the appellant.

At trial the court found that in this case a property order would not be ‘just and equitable’ due to the “lack of financial intertwining, the lack of financial planning for the future, the evident separation of finances and the continued individual ownership of property”. Specifically the reasons given were:

• They did not have a joint bank account
• Each retained properties in their own name
• Each was responsible for their own debts
• Each was free to use their money as they chose
• They were not involved in each other’s financial decision making, or aware of each other’s financial situation.
• Neither made significant improvements to the value of the other’s property
• Neither was a beneficiary of the other’s will or life insurance

This decision was appealed to the Full Court of the Family Court on numerous grounds including that the finding of the court was ‘manifestly outside the range of the reasonable ambit of discretion’ and that they were being held to a higher standard than other couples. All of these were dismissed and the original decision of the trial judge was upheld.

This case will not change anything for the majority of couples. In most circumstances an order for property division will still be found to be just and equitable, as most couples share the use of their property under certain assumptions that come to an end when the relationship does. However it may be significant for an increasing number of modern couples who choose to remain largely financially independent.

The information posted on this blog represents our opinion and should not be taken as legal advice.