The equal sharing rule will not apply to relationships that last less than three years. We look at those relationships here.
A partner might get more property if equal sharing does not lead to equality. There might be cases where someone has sacrificed a career to care for the family’s children and home. When the relationship ends that person may have poor chances of earning income. We look at how the law responds here.
The law also says that the partners should not share relationship property equally where there are extraordinary circumstances that make equal sharing seriously unjust. Because this exception is only for extraordinary cases, it rarely applies.
A partner’s misconduct has little influence on how the partners share their property. It can be unhelpful to make moral judgements on people’s conduct when a relationship ends. The only time when misconduct may be relevant is if a person’s actions after the relationship has ended have devalued property.
We want to know when you think the equal sharing rule should not apply.
Should equal sharing apply when one partner has been violent?
Family violence is one of the most serious forms of misconduct. It can have an horrific effect on family life.
Also, the victims of family violence will often suffer financial loss from the violence. Stress may interfere with work or study. Violence may break the family economic unit.
Some people say that a partner who has been violent should have less entitlement to relationship property. They say that the rule of equal sharing is to recognise both partners’ positive contributions to the relationship. If one partner has made negative contributions, like violence, they should not receive an equal share of relationship property.
On the other hand, some people say the law should not base the division of property on the partners’ conduct. They say that instead family violence should be dealt with by the criminal law and special family violence legislation.
When the partners divide their property, it can also be unhelpful for them to focus on each other’s conduct during the relationship. The current law helps partners sort out their property affairs rationally and dispassionately, and move on with their lives. If family violence was a relevant factor, the process could become more hostile. In serious cases of family violence, this could increase the risk of future violence.
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When a partner has squandered property
Sometimes partners in a relationship may spend lots of money on themselves. Partners may lose lots of money gambling. Or some people may spend lots on things like shopping, holidays or entertainment. It can sometimes be unfair because one partner consumes lots of relationship property without benefitting the other partner.
The law responds to this situation in two ways. First, a court can require a partner who devalues relationship property to pay compensation to the other partner. The main problem with this remedy is that the court’s power only applies when a partner has squandered relationship property after the relationship has ended.
Second, the court can require partners to pay compensation to the other when they have paid personal debts with relationship property. The main problem with this remedy is that it is not accurate to describe spending money, gambling and shopping as debts.
Should the law provide a better remedy?
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