It is important to know the definition of the property since in a property dispute it is needed to identify properties of the parties. Section 4 of the Family Law Act 1975 (FLA) provides a broad definition of property. However, jurisprudence provides valuable insight on what consists of property.
The definition of property in the case of Duff and Duff (1977) 3 Fam LR 11,211 is a constant point of reference. It was said in this case that property includes real property, personal property, chooses in action and goodwill. It was held by the Court that “the Act is to be read and construed widely and liberally with words and expressions being given their ordinary meaning”.
The list that was provided in Duff and Duff is not exhaustive. Typical examples of the property include:
In a property dispute, it does not matter if the property is in one party’s name or under a business name. It is easier to determine real properties but a difficulty almost always arises when it comes to personal properties because then there is a need to determine the interest of the party, whether it is a property that can be included in the property pool or it is a financial resource.
The case of Kennon and Spry (2008) 238 CLR 366 is an example of a party’s interest in a trust. The majority of the High Court, in this case, held that the assets of the trust with the power of appointment by the trustee and the right of the beneficiaries to the administration of the trust are property consistent with the FLA.
Another illustration of a personal property that can be included in the property pool is the interest of a husband in a law firm which is considered as an interest in a partnership. In the case of Best and Best (1993) FLC 92 – 418 it was held by the Court that the partnership interest of the husband in the law firm is property even though it could not be transferred and it would be difficult to put a value on such interest and make it subject to an order under Section 79 of the FLA.
In a property dispute, it is also helpful to know what does not consist of property. For instance, a mere hope or expectancy is not property or a capacity to borrow money.
When determining the property pool of the parties, both personal and business assets are to be included. The Court is required to consider all property, regardless of how it is acquired or where it is located since proceedings under Section 79 FLA are in personam and not in rem.