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Separation- the day before, or the day after Black Friday?

In April 2019, the Australian Law Reform Commission released its final report: “Family Law for the Future”.   Recommendation 13 provided that the Family Law Act should be amended to provide that the relevant date to ascertain the value of the parties’ rights, interests and liabilities in any property is the date of separation, unless the interests of justice require otherwise.  I do not agree with the recommendation for the following reasons:

  • It is sometimes difficult to discern the date of separation. The breakdown of every relationship is different. Some explode, whilst others rust. If this date becomes significant because there is a financial advantage or disadvantage then further factual disputes and litigation are likely.
  • It is not uncommon for one party in a relationship to have an intention to separate at a future time, whilst the other party may be blissfully ignorant of the pending separation.  The more savvy party may deal with assets in such a way as to provide them with a strategical and/or financial advantage before unilaterally choosing the date of separation.
  • Time, and the ebb and flow of market fluctuations, does not stand still and there is a potential for injustice to the parties by choosing a retrospective date. It may also be more costly to the parties to obtain historical valuations. 

My preference is for the status quo: a holistic assessment of each party’s contributions including the post separation period until agreement about property settlement is negotiated, or an outcome determined.

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