Step 4: Just and equitable requirement
Unless the property settlement is fair, the arrangements should not be finalised. This requirement is the fourth step in the four step process of determining a property distribution as provided by the case Hickey and Hickey. What is just and equitable depends on the circumstances of the particular case.
What is just and equitable in family law proceedings?
After assessing steps 1, 2 and 3, the Court must decide whether the final result is fair for each of the parties. To achieve this aim it is important for both parties to know their obligations and entitlements. What is just and equitable depends on the circumstances of the particular case.
Case: Husband receives $1M out of a $66M property pool
An example of the just and equitable considerations being applied can be seen in the case of Cook v Langford. Here, the total property pool was $66 million, however, the Court found that the husband was only entitled to $1 million based on his overall position and contribution to the assets. This was considered as neither unjust nor inequitable.
Deciding what is just and equitable requires:
- considering the effects of the findings of the first two steps (specifically Step 1: What assets are in the asset pool? Step 2: What contribution did each party make?);
- considering the effects of the determinations regarding the contributions of the party which are influenced by the s 75(2) additional factors (specifically factors such as the age and stage of health of each party, responsibility each party to care for a child, the income, property and financial resources of each party); and
- deciding what order is just and equitable taking into account all the circumstances of the parties.
This final step recognises that calculation of percentages or an equal distribution is not necessarily the fairest outcome. For instance, one party may have an amount in superannuation that is equal to the property in the asset pool. If this party receives the superannuation and the other party receives the property in the asset pool the distribution is equal. However if the superannuation cannot be used for several years, the outcome is unfair. It is for the judge to decide what is just and equitable, with the main concern being the present and future needs of both parties.
Click here to apply sample percentage divisions of your asset pool using the Mathews Family Law & Mediation Specialists Asset Pool Calculator.