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Family Property Division and the Principle of Judicial Restraint

Author

Patrick Parkinson AM

The Family Law Act 1975 (Cth) provides that judges must not alter property rights on the breakdown of the relationship unless satisfied that it is just and equitable to do so. This is the principle of judicial restraint. In the past, and prior to the 2012 decision of the High Court in Stanford v Stanford, this principle was given almost no effect. The High Court sought to correct this approach, insisting that the family courts should not begin from an assumption that a couple’s property rights are or should be different from the state of the legal and equitable title. It also reaffirmed that there is no community of property in Australia. This article considers the significance of the principle of judicial restraint: first, in cases where the property is already jointly owned and, secondly, in cases where the couple have chosen to keep their finances separate.

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