Matrimonial Property and the Disponor Spouse

Abstract

The author first discusses the statutory framework which has led to the divided jurisdiction over matrimonial property in Australia. This is followed by an examination of the problems that this division creates, such as delay in settling property disputes, jurisdictional conflict when one spouse unilaterally seeks a “State” remedy, and evasion of the intention behind the legislation to divide matrimonial property equitably between the parties. Some of the mechanisms like gifting and trust arrangements by which a spouse may rearrange his affairs to insulate himself from the jurisdictional reach of the Family Court are examined. The limitations of the injunction power under s. 114 of the Family Law Act 1975 (Cth) are exposed and following this the author speculates about the scope of s. 85 of the Act which attempts to empower the Court to set aside transactions designed to avoid the provisions of the Act. He concludes that the powers of the Family Court are uncertain and limited and that the only real solution would lie in a reference of power in this area to the Commonwealth by the States.