J is for just and equitable – A-Z of Family Law

Any conversation with a family lawyer will eventually touch on the phrase “just and equitable.” While the words themselves seem simple, their legal meaning is far more nuanced than one might expect.

Under the Family Law Act, justice and fairness are central to any property settlement. The Act provides that the Court must not alter property interests unless satisfied that doing so is just and equitable in all the circumstances (section 79(2) for marriages, section 90SM(2) for de facto relationships).

Of course, what is “just and equitable” to one person may not be so to another. The concept is highly subjective and must be applied to the unique facts of each case.

The decision of Hines & Easton (No 2) [2024] FedCFamC2F 536 was delivered by Judge Brown of Division 2 of the Federal Circuit and Family Court of Australia which, in part, involved a deep consideration of the ‘just and equitable’ determination.

The decision involved a lengthy de-facto relationship with a very small property pool and two parties essentially at the end of their working life.

The de-facto wife (for ease of reference) argued that it was not just and equitable for the parties’ property interests to be altered, which would see her retaining 83.5% of the net asset pool as the family home was solely in her name. The de-facto husband disagreed, and sought an equal division of the property interests.

Judge Brown was faced with the unenvious task where there are insufficient assets for each party to leave the relationship and obtain permanent accommodation.

• two individuals cannot live as financially efficiently as a couple, particularly when accommodation expenses must be duplicated. The main focus in this case is on how this misfortune is to be mutually apportioned in a just and equitable way [13]-[14].
• Whether it is just and equitable … must depend upon the court’s analysis of the idiosyncratic circumstances of each particular case which comes before it. It is not an issue to be approached in a formulaic manner or on the basis of any assumptions regarding contribution issues [174].
• The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations (directly citing Stanford v Stanford [2012] HCA 52) [175].
• In many cases … the just and equitable requirement is readily satisfied by observing that, as the result of the choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife (directly citing Stanford) [184].
• any order which would deprive a party substantially of what he or she is entitled to by reason of contribution would not normally be considered just and equitable (directly citing Lee Steere & Lee Steere) [195].

Judge Brown relied on the significant number of decisions that had well-versed the concepts, including Bevan, Stanford, and Watson and Ling, in considering the positions of each party as to whether or not an adjustment was just and equitable.

Ultimately, a conclusion was reached that it not be just and equitable for the property interests to not be altered, given all the circumstances: the length of the relationship, the contributions each of them had made to the marital home as well as during the relationship generally, and the overwhelmingly superior financial position that the de-facto wife would leave the relationship with in comparison.

Judge Brown stated that “Mr Hines must be taken to have made significant direct financial contributions to the acquisition of the property over very many years … it is readily apparent that it is just and equitable for property orders to be made” [186]-[187].

Having said this, the outcome reached of 61% in the de-facto wife’s favour did recognise her need for stable housing, a necessity which the de-facto husband was not plagued by given his living circumstances.

The decision reiterates that:

1. More often than not, it will be just and equitable to adjust property interests – but this is by no means a certainty.
2. Judicial discretion is a broad, far-ranging principle.
3. ‘Just and equitable’ is at the core of every property settlement; any decision sought should be considered with this at the forefront.