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Equal or Equitable?

In April 2019, the Australian Law Reform Commission released its final report: “Family Law for the Future”.   Recommendation 12 is that the Family Law Act should be amended to include a presumption of equality of contributions during the relationship, when determining what is just and equitable in property settlements. 

Presently, the Act is based upon the exercise of discretion as to what is a just and equitable division, after consideration of relevant direct and indirect financial and non-financial, parenting and homemaking contributions.  There is no presumption of equality and courts have long held that the contributions of a breadwinner will invariably be as important as those of a homemaker, with each case being potentially different from the next.   Future needs are also taken into account.

I am not a fan of this recommendation.  I cannot see how it will deal with challenges that arise in short relationships where one party may have introduced significantly greater assets and income than the other, or in relationships where an inheritance has been received and preserved, or where a parent/ homemaker has made great efforts to keep a family together.  In my experience a change to a presumption of equality will deter some folk from entering into relationships and impact on the mutuality of existing relationships. Senior couples seeking companionship in their later years may have more reservations, and parents giving benefits to adult children may become more cautious. 

I fall on the side of equitable rather than equal, but look forward to the discussion.   

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