Separation means property division, right?

Clients are often surprised when we query whether a property division is appropriate and likely to be granted by the Courts. Whether married or a de facto couple, the Courts must find that it is “just and equitable” to make an order altering a party’s entitlements in any property division.

In the case of Chancellor & McCoy [2016] FamCAFC 256, the Family Court held that it was not just and equitable to make an order adjusting the property interests of the parties who had lived in a same-sex de facto relationship for 27 years.

Throughout the relationship each of the parties acquired properties in their own names, each were responsible for their own debts and free to use their money as they chose. There was no joint bank account and they were not involved in each other’s financial decision making. However, at the time of trial one party had assets of a significantly greater value than the other.

The Court held that the parties “conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other” and therefore it would not be just and equitable to alter the parties’ respective property interests.

This case will become increasingly relevant for the growing number of modern couples who choose to remain largely financially independent.

Being in a recognised relationship (whether marital or de facto) does not automatically give rise to a right for a property adjustment order, particularly in circumstances where the parties had always kept their finances separate. It is important to remember that there is no guarantee as to whether the Court will or will not make a property adjustment order. Each couple's case is decided on its own particular facts.

Rosy Roberts, Lawyer


Jenni Mooney, Senior Family Lawyer and Rosy Roberts, Lawyer collaborate on all our Family Law.  Contact Jenni Mooney or Rosy Roberts of Burke & Associates Lawyers on; or (03) 9822 8588.