Section 79(2) requires that all property settlements be fair and equitable before the arrangements are to be finalised. This requirement was included as the fourth step in the Four Step Process of determining property distribution (the first three steps being identification of assets, determining contributions, and additional factors).
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
This extra step was added due to the fact that sometimes the calculation of percentages or ‘equal’ distribution of property value is not the fairest outcome. For example, the husband of a marriage may have an amount saved in his superannuation fund that is equal to all of the tangible assets of the marriage. Technically, if he keeps his superannuation and his wife is allocated all the tangible assets, they are receiving equal property in terms of value, however, as the husband would not have access to his superannuation fund for another 10 years, the outcome becomes unfair and so other arrangements must be made (i.e: the husband will receive some tangible property).
It is up to the discretion of the judge to determine what is just and equitable. As every matter is different, there are no standards stating exactly what is just or equitable, and so it is the circumstances of each case which determine this. The main consideration of the court will be the present and future needs of each party.
If you are likely to be involved in a court proceedings or in a legal dispute, you should get advice from afamily law lawyer.
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