Measuring the Chancellor's Foot — Matrimonial Property Law in Australia
| Date | 01 March 1984 |
| Published date | 01 March 1984 |
| DOI | 10.1177/0067205X8401500103 |
| Author | John H. Wade |
| Subject Matter | Comments |
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COMMENTS
MEASURING THE CHANCELLOR'S FOOT -MATRIMONIAL
PROPERTY LAW IN AUSTRALIA
BY
JOHN
H.
WADE·
The High
Court
has recently decided
an
important case
on
the distribution
of
property between divorced
spouses
under
s·
79
of
the Family
Law
Act
1975
(Cth).
In
Mallet
vMalletlamajority
of
three to two (Gibbs CJ,
Wilson and Dawson JJ; Mason
and
Deane JJ dissenting) determined
that
the decision
of
the
Full Court
of
the
Family Court to divide the assets
of
the divorced couple equally shouldbe overturned, andthe division effected
by the trial judge (Bell J) reinstated.
The facts
of
Mallet vMallet were
that
the parties' marriage
had
lasted
for
29
years until its dissolution in
1979.
There were three children
of
the
marriage who
by
the time
of
the hearing were 33,
32
and
20
years
of
age.
All the children were self supporting. Bell Jdescribed the history
of
the
marriage in the following way:
[This] was amarriage in which the parties originally suffered financial
difficulties but as aresult
of
the hard work
of
the husband and his ability,
as well as to an extent the assistance
of
the wife to the husband, the parties
by
1974
found themselves in amuch better financial position, and from about
1974
until the date
of
separation, both the parties lived
at
avery high standard.
The wife has had the responsibilities
of
looking after the children in their
formative years when the·parties were in straitened financial circumstances.2
[The wife] has throughout
her
married life acted as ahostess, reared children
and generally assisted the husband by allowing him to have more time to
devote his obvious energetic endeavours in the management
of
the companies.3
The assets accumulated
by
the parties were described and valued
at
the
date
of
the hearing as follows:
Property jointly owned
Property owned solely by the husband (excluding
his
26
shares in the family company)
Property owned solely
by
the wife (excluding
her
26
shares in the family company)
Value
of
26
shares owned
by
the husband
Value
of
26
shares owned by the wife
Under
the
broad
discretion contained in s
79
of
the Family
Law
Act
1975
(Cth) the trial judge decided
that
the wife should receive one-half
of
the
•LLB, Dip Jur,
LL
M(Hons), Senior Lecturer University
of
Sydney.
1(1984)
FLC
95-507
(10
April
1984).
2Ibid 79,
122;
79,
123.
3Ibid 79,
120.
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