Every so often, a case comes along which turns the legal profession on its head. Stanford v Stanford was one of those cases. If your lawyer keeps harping on about reaching a ‘just and equitable’ outcome, this guy is to blame.
What is all the fuss about?
Without getting into the complex details of the matter, this case essentially put a new spin on the four step process in family law property settlements.
The four steps are as follows: 1) identify asset pool, 2) assess the financial and non-financial contributions of each party, 3) assess the future needs of each party to determine if any adjustment is required and 4) apply to the Court for orders, who will consider whether the final arrangement is just and equitable.
In particular, this judgment influenced the way step 4 was interpreted by lawyers. In Stanford v Stanford, it was decided that the requirement of a ‘just and equitable’ is fulfilled at two points throughout the process, rather than one. In light of this decision, legal practitioners are now compelled to as whether an adjustment is required AT ALL for a just and equitable outcome. If not, parties should each go their own way with their own property and settle the property as is. A property settlement that changes your property interests should only be pursued if failure to do so would prevent a just and equitable outcome. Then, the Court must also evaluate the final settlement to ensure it is just and equitable.
So what?
This case made a new priority in family law property settlements which must be addressed before the four step process even begins. Before approaching a lawyer, be aware that they will apply this test. If you and your partner can each keep your own assets and liabilities yet still have a just and equitable outcome, then there is no need for a long negotiation trying to change who owns what. Simply apply for consent orders to confirm the property settlement.
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If you have any questions or concerns about property settlement, family law and , please contact James Frank for further advice at jfrank@franklegal.com.au or 02 9688 6023 or click the button below.
This article is provided to the reader for general information. It is not legal advice. It was written by Emily Graham & Andrea Spencer and edited by James Frank.
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