Same Sex De Facto Property Distribution Held Not to be “Just and Equitable”

In the recent decision of Chancellor & McCoy [2016] FAMCAFC 256 (2 December 2016), the Court dismissed Ms Chancellor’s (the appellant’s) application on the ground that it was not just and equitable to make order altering property interests for a same sex de facto couple that had been in a relationship for 27 years.

At the time of the trial, Ms Chancellor, aged 59, had net assets worth $720,391 and her ex-partner Ms McCoy, aged 55, had net assets worth $1,698,664. The Court considered the fact that the couple had ‘conducted their affairs in such a way that that neither party would or could have acquired an interest in the property owned by the other’; that is, they kept their finances completely separate. Ms McCoy (the respondent) bought the property in her sole name the year their relationship began; the parties lived in and renovated the property.

Ms McCoy paid for the renovations and Ms Chancellor assisted with the labour. Ms Chancellor also paid Ms McCoy between $100 to $120 a fortnight for most of the relationship. Further, in 2002 Ms Chancellor bought a property in her sole name. The renovations were undertaken on that property, which were funded by Ms Chancellor and Ms McCoy assisted with labour.

On appeal, the Court relied on the principles enunciated by the High Court in Stanford [2012]. It was held that is was not just and equitable for the Court to proceed with a property division between the parties for the following reasons:

(a) the parties did not have a joint bank account for the duration of the relationship;

(b) each party acquired property in their own name;

(c) each party remained responsible for their own debts;

(d) each could use their net wages as they chose without explanation; and there were lack of joint financial decision making.

Additionally, at the time of separation neither party was aware of the assets the other had acquired. Also, neither party had taken any steps to ensure that the other would receive their property or superannuation in the event of death.

The Court ultimately dismissed Ms Chancellor’s application for the property division on the basis that it would not be just and equitable for there to be an order altering property interests.

Leave a Reply