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What Happens If You Reconcile After Agreeing To A Property Division?

29 May 2017

It’s happened to Elon Musk and it happened to Richard Burton. Couples divorce and then remarry. It’s not uncommon. So what happens when a couple separates, they formally divide their property, but later they reconcile and resume their relationship again? The court has recently considered such a case.

The Family Court recently considered a case where a couple who had separated and reached agreement in relation to property division in 1998 and after being separated for 18 months they reconciled in early 2000. They then finally separated in 2012. The total relationship had been for around 30 years and they had two children together.

The wife sought to set aside the consent orders made in 1998 on a number of grounds, including that there had been a ‘miscarriage of justice’ and that the parties had impliedly agreed to vary the orders when they reconciled. The wife’s initial application to set aside those orders was dismissed. She then appealed to the Full Court of the Family Court.

The Full Court disagreed with the trial judge, finding that there had been a ‘miscarriage of justice’ due to the surrounding circumstances when the 1998 Orders were made, including:

  • The wife’s lack of literacy and understanding of the terms of the document;
  • The wife did not receive advice about her likely entitlements;
  • The wife signed the consent orders in front of a clerk of the court who did not provide legal advice and did not ensure the wife understood the orders;
  • The husband’s solicitor presented the order to the wife and read them to her;
  • The wife did not receive any disclosure documents from the husband prior to signing the consent orders.

In relation to the ground that the parties had impliedly consented to set aside the orders, the court found that reconciliation is not, itself, sufficient to show the parties impliedly consented to setting aside the Orders. Any finding that the parties impliedly consented to setting aside the orders must be made by considering all the relevant facts. The court must review the facts and determine whether there is any evidence that the parties no longer intended to be bound by the terms of the orders.

During the second period of the relationship, between 2000 and 2012, the parties kept their finances separate and did not purchase joint property together. The wife also continued to receive Centrelink payments as a single parent and listed her address as her brother’s property during this time.

The Full Court determined that the lengthy period of cohabitation indicated that the parties did not intend the 1998 Orders to finally determine financial matters between them and that final orders should take account of the 30 years of cohabitation and contributions by both parties. The court held that it would be “unreasonable or unconscionable” not to take account of the entire relationship.

The wife was successful in her appeal and the Orders of 1998 were set aside.

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2019-04-23T14:45:01+10:00

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