When Is No Order the Right Order?

In proceedings for property settlement, one of the first things a court must ask itself is, in order to do justice between the parties, should it make any order for property settlement?

In Bevan & Bevan [2013] FamCAFC 116, one of the wife's grounds of appeal was that the trial judge, in dividing the property of the parties 60:40 in her favour, was in error in making any order for property settlement at all, as it was not just and equitable to do so.

The facts of this case were unusual in that the parties had largely lived apart for 18 years prior to their separation; the wife in Australia and the husband in England. Some years beforehand and on more than one occasion, the husband had told the wife that she could keep whatever assets they had, and she had conducted herself accordingly, including selling their jointly owned real estate and buying a home in her name. At trial, apart from a motor vehicle, the whole of the $1million dollar property pool was in the wife's name including her home.

On appeal the Full Court was satisfied that the trial judge had failed to make a finding as to an ultimate requirement under the Family Law Act, namely, that the court should not make an order unless it is just and equitable to do so.