‘Forced’ Separation and the Family Court of Australia decision in Stanford v. Stanford: Implications for Property Proceedings

35 Pages Posted: 4 Sep 2012

See all articles by Robyn Carroll

Robyn Carroll

University of Western Australia

Date Written: August 30, 2012

Abstract

In Australia, ‘separation’ for the purpose of making a divorce order means the breakdown of the marital relationship. The law is clear that for the purposes of divorce, separation involves more than physical separation. It does not follow, therefore, that a party to a marriage who is forced by ill health to stay in hospital or to live in residential care has thereby ‘separated’ from their marriage partner. With our ageing population, an increased life expectancy and a growing number of people suffering the debilitating effects of dementia, ‘forced separation’ in this sense is increasingly common. This paper is concerned with applications for property settlement under the Family Law Act 1975 (Cth) between the parties to a marriage where the couple has not chosen to separate but are physically separated because of accommodation needs arising from ill health. Many of the issues that arise upon forced separation, including the role of litigation guardians, are raised by the decision of the Full Court of the Family Court of Australia in Stanford v Stanford [2012] FamCAFC 1. This paper identifies and discusses a number of the issues that arise when an application is made for a property settlement or spouse maintenance on behalf of an incapable party to an intact marriage. The paper proceeds on the basis that the Family Court has jurisdiction under s 79 of the Act to make orders to effect a property settlement or for spousal maintenance. It is also assumed that the Court has jurisdiction to make property orders pursuant to s79(8) of the Family Law Act if one of the parties to the intact marriage dies after proceedings are commenced, as was the case in Stanford. Whether these are correct legal assumptions is the subject of an appeal to the High Court of Australia (Case P23/2012) to be heard on 4 September 2012.

Keywords: marriage, separation, incapacity, property, maintenance, Family Court of Australia, Stanford

Suggested Citation

Carroll, Robyn, ‘Forced’ Separation and the Family Court of Australia decision in Stanford v. Stanford: Implications for Property Proceedings (August 30, 2012). Available at SSRN: https://ssrn.com/abstract=2140573 or http://dx.doi.org/10.2139/ssrn.2140573

Robyn Carroll (Contact Author)

University of Western Australia ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
190
Abstract Views
1,230
Rank
287,983
PlumX Metrics