Mcphee Lawyers


23 February 2015

No Guarantees – Even in a Long Relationship


In the Western Australian case of Fielding and Nichol (2014) FLC 93-617, Thackray CJ dismissed an application brought by the de facto husband in a 12 year relationship. Relying on s79(2) (requiring the Court not to make an order unless  it is satisfied in all the circumstances it is just and equitable to do so) and applying the recent case of Stanford v Stanford [2012] HCA 52 (15 November 2012), Thackray CJ found that it was not just and equitable to make any orders altering the property entitlements of the parties.

This was a second relationship for both parties. Both parties held property at the commencement of the relationship. The de facto husband moved into the property owned by the de facto wife but during the course of the relationship they kept their property and finances separately. The de facto husband claimed he had made contribution to the property owned by the de facto wife.

In arriving at his decision, Thackray CJ at paras 51 to 53 of the judgment took account of the following matters:-

  • Throughout the relationship the husband insisted (and the wife agreed) to keep their property and finances separate;
  • The parties were mature, intelligent people and not overborne by the other on any way;
  • The majority of the assets held at cohabitation existed in the same form at the time of trial;
  • There was no evidence to suggest that  the husband did not accumulate other assets as a result of having the benefit of living in the wife’s home;
  • Neither party made provision for the other in their Wills (save for the minor issue of a car) and it was clear that the parties had turned their minds to the issue;
  • The extent of the husband’s contributions around the wife’s property was not such as to lead to a conclusion that it would be just and equitable to adjust existing property interests, especially given that the husband (and, for part of the time, his son) lived in the property free of rent;
  • Even though the wife’s assets were greater than the husband’s each party had significant assets to meet any needs that could not be met from income.

Interestingly, Thackray CJ went on to assess what his decision would have been if he the application had not been dismissed under s79(2). In this assessment he noted that he would have found that the property as it stood at trial would have been adjusted slightly in favour of the wife to achieve and outcome of 62.5% to the wife and 37.5% to the husband.

Each case turns on its merits and each Judge may exercise their discretion differently. If you have any questions about de facto property matters please make an appointment with one of our solicitors.

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