Consent Orders dealing with property matters following breakdown of a De Facto relationship or Marriage – Do they survive a rekindling of the Relationship

25/07/2017

In a recent case of Waterman in 2017 the Full Court of the Family Court considered this aspect amongst others issues that arose.  We have elsewhere dealt with different matters referred to in the Waterman case in particular the effect of the failure of one party to provide full financial disclosure and the disastrous consequences of such failure.

Briefly the husband and wife in the Waterman case had been in a relationship for 30 years and they had 2 children together.  Following the separation there were disputes which were resolved by Consent Orders.

Shortly thereafter the parties rekindled their relationship and lived as man and wife for a number of years.

The Court held that “reconciliation is not of itself, sufficient for a finding that the parties had impliedly consented to the setting aside of a Consent Order” (under s79) … Rather any findings are made by reference to circumstances of the parties relationship by which their intention is to be inferred.

In the Full Court of the Family Court the wife submitted amongst other things that there was an implied term of the Consent Orders, that having regard to the reconciliation, those Consent Orders were not binding.  In the Waterman case the reconciliation was for a considerable period after the Consent Orders had been made.

The Full Court of the Family Court took into consideration the relationship after the reconciliation and how it was different to the initial relationship as to matters such as:

1.        The purchase of property was not in joint names.

2.        The parties had separate bank accounts and kept their finances separate.

3.        The wife took out separate loans in relation to her expenses.

4.        The husband paid the wife generally in accordance with the Consent Orders.

In addition in the Waterman case the wife received Centrelink benefits for a considerable period of time during the reconciliation period.  We believe that the obtaining of Centrelink benefits by one party is a matter that does not change the factual matters as to whether the parties were together.

Also there are other issues that arise in the event that a party to a relationship claims Centrelink benefits to which they are not entitled. We have not dealt with this very important issue in this article.  However you should be aware that there are severe consequences of making claims for Centrelink or other such payments to which a party is not entitled.

In the event that the Consent Orders had been upheld in the Waterman case (rather than set aside as they were) the Court would still consider whether there should be an adjustment of property rights having regard to the further extended reconciliation period where the parties lived as man and wife.

Where there is a reconciliation for such a period, a claim can be made for an adjustment to property and in such a case, the Family Court or the Federal Circuit Court would take into consideration all matters other than why the parties finally separated.

The Court would look at the contributions made by each of the parties to the acquisition, maintenance and improvement of the matrimonial property held at the time of the Hearing.

The Court would look at factors that may require an adjustment in favour of one party to the other to achieve an outcome which is fair and equitable. 

One of the factors that would be taken into account would be the Consent Orders and the facts following those Consent Orders.  Generally the matters that are taken into account are set out in s79(4) and s75(2) of the Family Law Act.

The extent and nature of the Consent orders would need careful consideration and hopefully there would be negotiations to resolve the matter on a fair and equitable basis having regard to the terms of the Consent Orders.  Failing agreement the Family Court or Federal Circuit Court would have to consider the effect of the Consent Orders and post Consent Order contributions.

At Watson & Watson we are experienced in all aspects of family law including almost all circumstances that may have occurred.

If you find yourself in the position which is different to the normal relationship and relationship breakdown (if there is such a thing) please telephone our experienced Family Lawyers at Watson & Watson.  Please telephone Richard Watson or his Personal Assistant Shereen DaGloria to obtain advice as to your circumstances.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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