Journal Article

Equality, Needs, and Bad Behaviour: The ‘Other’ Decision-Making Approaches in Australian Matrimonial Property Cases

Helen Rhoades

in International Journal of Law, Policy and the Family

Volume 19, issue 2, pages 194-205
Published in print August 2005 | ISSN: 1360-9939
Published online August 2005 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/ebi014
Equality, Needs, and Bad Behaviour: The ‘Other’ Decision-Making Approaches in Australian Matrimonial Property Cases

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Australia’s matrimonial property division jurisprudence has tended to focus on cases involving large asset pools and successful business enterprises. This contribution draws on an empirical study of unreported Family Court judgments to explore the patterns of reasoning in the more general population of defended matrimonial property disputes. The data from this study revealed that case law principles which exhort judges to assess and compare the value of each spouse’s contributions were rarely observed in practice beyond the ‘big money’ cases, and that judges regularly abandoned the requirement to consider the parties’ contributions in favour of a needs-based approach where there were limited assets and dependent children to house. The findings also indicate that notions of matrimonial fault continue to affect judicial decision-making in this area of law.

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Subjects: Family Law ; Marriage and the Family

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