The recent High Court decision in Stanford v Stanford [2012] HCA 52 will change the way the Family Court determines property Application

The decision of the High Court  delivered 15th November ,2012  will no doubt  change the way the Family Court  determines  property settlement Applications for married couples under s79  and for De-facto couples under S90SM of the Family Law Act.

In light of Australia’s aging population and tendency for 2nd and 3rd marriages similar cases can be expected to arise . At the time the proceedings were brought the Husband was 87 and the Wife 89 . The wife had suffered a stroke and admitted to full time residential care and subsequently developed Dementia.  The Wife by her daughter as Case Guardian commenced proceedings in the  Magistrates Court  of WA for property settlement under S79. An order was made for Husband  (who was represented by his son as Case Guardian ) to pay Wife $612,931 or 45% of the Asset pool which on appeal the Full Court of the Family Court ordered that amount be paid to the wife’s estate on the death of the Husband. The Husband successfully appealed to the High Court on the basis that despite being physically separated  due to the wife’s ill health ,the parties marriage remained intact and thus the Family Court had no jurisdiction to make an order under S79.