Property Disputes between the Parties to a Marriage: Problems of Dual Jurisdiction

Abstract

When a marriage breaks down if the parties are unable to agree as to how their assets are to be divided their disputes may currently be heard in two different court hierarchies applying two disparate sets of legal principles. Inevitably this position leads to forum shopping and to the proliferation of legal proceedings which are not directed at resolving the substantive issue between the parties. It produces uncertainty, duplication, expense and delay. Although the problems associated with dual jurisdiction in matrimonial property disputes arise both before and after divorce, neither the Family Court nor the Supreme Courts have yet, it seems, formulated policies which ought to be pursued. Nor have they been consistent in their choice or application of the legal mechanisms that they enlist to break the deadlock. It is suggested here that both the federal and state courts should aspire to the centralisation of matrimonial property disputes, so far as is constitutionally feasible, within the Family Court. With that objective in mind the various legal devices currently invoked to resolve disputes about jurisdiction are critically reviewed. Some techniques are suggested to overcome problems which recur in the case law and a general approach is proposed which, it is hoped, will achieve consistency in the aims and in the legal principles adhered to by the courts in the future.