Society/Culture A Man's Right In A Marriage Breakdown

Malifice

Moderator
Oct 2, 2007
34,934
30,930
Perth
AFL Club
Carlton
Chapman & Chapman - ‘a judge is not “obliged to take into account the matters in s79(4)'. Turner J in her trial judgment in Chancellor & McCoy, relied on that comment. A judge is at 'mere liberty' to do so in determining whether it is just and equitable to make any order altering property interests. Turner J took into account (amongst other things) the absence of sharing of financial information, the parties not making provision for the other in the event of their death, and a lack of joint financial decision-making, and declined to make any order altering the property of the parties. An appeal to the Full Court was unsuccessful.
You're misinterpreting that authority. It relates to a recent decision of the HC re Stanford v Stanford (Standford) Prior to Stanford, Courts would take into account S79 matters and THEN adjust them on the grounds of what is 'just and equitable'. In Chapman (applying the test in Stanford), the Court must FIRST decide if adjusting the property settlement orders is 'just and equitable, and if so, must THEN apply the criteria of s79(4) to those orders.

See Para 71 and 72 of the judgement here: https://dafamilylawyers.com.au/wp-c...cott-Judgement-of-Justice-Forrest-14.2.14.pdf

Notably, when adjusting property settlement orders is 'just and equitable' the Court must apply the s79(4) criterion - which includes giving adequate weight to Child support payments.

In regards to 79(4)(g) in relation to future child support payments affecting the property settlement - I knew what I knew, but just to confirm I went through a heap of cases that mentioned it.

None of the judges went outside 79(4) - like I said, it's rare.
It's 'rare' and you didnt find any is because the direction in the FLA is that Judges MUST take those 79(4) matters into account.

A judge that fails to do so, or gives insufficient weight to those matters, is liable to an appeal on a Point of Law.

Again; If I prepared an Affidavit of assets and liabilities for a client, I would include my Clients Child Support payment liability, as an offset to any liability my client would owe to the parent in receipt of Child Support payments pursuant to s79(4)g of the FLA.

It's one thing for the other party to claim a reduction in income due to being the primary caregiver for the children and reduced income due to having that role in the past (allowing the other parent to have a higher income due to remaining in work). That's conceeded.

But that reduction is at least party offset by that Child support liability.
 

fleabitten

Norm Smith Medallist
Feb 16, 2012
5,721
10,317
AFL Club
Richmond
Other Teams
Portland Trailblazers
By 'anything' you mean 'go postal and get violent' right?
Many men would react that way and I think it's fair to say he's showing some amount of restraint in that regard if the OP's story is true. OP claimed he is practically being goaded into such a reaction. But that's not what I meant. There's a bunch of responses he could have to that treatment that might give him some short term satisfaction but would be harmful in the long term (bringing his own sexual partners into the house, for example...or hiring some shitbag lawyer to destroy her despite what that might do to his children). If he's still just going to work and trying to be a decent dad, then he's showing a lot of restraint in a very difficult situation.
 

(Log in to remove this ad.)

Malifice

Moderator
Oct 2, 2007
34,934
30,930
Perth
AFL Club
Carlton
Many men would react that way (with violence towards their partner) and I think it's fair to say he's showing some amount of restraint in that regard if the OP's story is true.
Restraint is not = to 'not bashing your partner when she's sh*t.'

'Many' men dont react with violence when in a domestic dispute with their partner. Only a few scumbags do, and they dont deserve to be called 'men'.

Again; he needs to man up (this means be a good upstanding person, and not a sh*t bloke who clocks his missus) and get sh*t done properly.

If your partner is sh*t, you do what needs to be done to end the relationship, you move on and you find a non-sh*t partner.
 

fleabitten

Norm Smith Medallist
Feb 16, 2012
5,721
10,317
AFL Club
Richmond
Other Teams
Portland Trailblazers
Restraint is not = to 'not bashing your partner when she's sh*t.'
And nobody said it was. I wasn't even thinking about his partner, I was thinking about the boyfriend. And as I said (and you snipped) from my last response, I wasn't even thinking violence in the first place. You're the one fixated on it.

'Many' men dont react with violence when in a domestic dispute with their partner. Only a few scumbags do, and they dont deserve to be called 'men'.
Starting to think you protest too much.

Again; he needs to man up (this means be a good upstanding person, and not a sh*t bloke who clocks his missus) and get sh*t done properly.

If your partner is sh*t, you do what needs to be done to end the relationship, you move on and you find a non-sh*t partner.
He is already manning up as far as we can tell from the OP's story. The question is what is his next move. Bringing people like you into the equation is not likely to work out well for him. You clearly have no understanding or empathy for men in his situation.
 

Jack Gun Cyril Stun

Club Legend
Oct 5, 2012
1,226
1,453
AFL Club
Hawthorn
Of course you are right. But I was seeing it mainly from what was happening to my friend, Brad. I know her well enough to know what she was up to. She wanted violence. She wanted a punch up between the two men. And the strategy was to get Brad kicked out of his house. My wife actually was the first to say it early on when he picked up his children for an afternoon kids party at our place, but was confronted by the boyfriend during the swap-over. I don't know if there is an equivalence with women. How many women have restraining orders against them to enter their homes? Facts of life. Accuse me of being a men's right's advocate, but you are just tilting at windmills. Of course there is a difference. Men can do more damage physically. Ask any cop who has to deal with this stuff. I can't believe thats men's rights advocacy - its just a fact.

My only wonder was the status of the owners of the marital home during a separation under the same roof. I think both spouses should have rights. But if one spouse can bring in whoever they like during the separation period when the other spouse just can't handle it, that is just wrong. The law allows for it, but it is fraught with problems. Before you go on, think about how the children would find all this? They need a settled environment. . It don't work. Humans aren't that civilized. So laws should reflect that.
Sounds a very tough position for your mate. Can’t fault most of the advice here about settling legally, financially as quickly as possible. Sounds like he has the skills to buy and reno another house for his own financial position down the track and be ok.
My biggest concern are the kids esp around the grifter boyfriend. I hope they are going ok. Don’t like the sound of the influence he brings, I’d have eyes and ears on him and the house.
 

sorted

Norm Smith Medallist
Aug 21, 2016
8,424
10,936
AFL Club
Geelong
In Chapman (applying the test in Stanford), the Court must FIRST decide if adjusting the property settlement orders is 'just and equitable, and if so, must THEN apply the criteria of s79(4) to those orders.
This I agree with. However, in Chapman & Chapman, Strickland and Murphy JJ (citing Stanford) stated that it is not a requirement to take account of the matters in s 79(4) when considering the question of whether it is just and equitable to make any order under s 79(2).

It also follows that, if the court finds that for some reason, adjusting the property settlement orders is NOT just and equitable then a judge is not obliged to take into account the matters in s79(4).

We are probably getting bogged down in detail. Some of the finest legal minds in the country have discussed the implications of Stanford and have come up with different conclusions. In practice, the clauses in s79(4) will apply in most cases, and they are a reasonable shortcut in explaining to clients how the process might work and in setting expectations.
 

sorted

Norm Smith Medallist
Aug 21, 2016
8,424
10,936
AFL Club
Geelong
It's one thing for the other party to claim a reduction in income due to being the primary caregiver for the children and reduced income due to having that role in the past (allowing the other parent to have a higher income due to remaining in work). That's conceeded.

But that reduction is at least party offset by that Child support liability.
What you said was

Child contact arrangements post separation have no effect on property settlements. They only affect child support obligations.
That's a pretty basic error for someone who purports to practice Family Law. Getting back to the inconsistencies in your story.

Then again, Family law isnt my bag.
Broadly speaking (and Family law aint my bag)
 
Last edited:

Todman

Norm Smith Medallist
Aug 7, 2004
7,146
5,871
AFL Club
Hawthorn
Sorry, their equity is about 230K (I think). Where does he find 125K?
I know I'm late for this discussion but half of 230K is 115K.

Things to remember Brad will be paying for all the costs because Rachel doesn't work. He will probably foot her legal bills as well.

If after the dust settles he walks away with 80k he should consider himself lucky.

He will have to find suitable accommodation to house his 3 kids when he has them.

Brawling with lawyers is expensive. I have a friend who had a 140K legal bill to divorce her cheating husband who refused to sign any paperwork. He only ever worked for cash so legally he had no proof of income.

The way the property market is now, it is possible he'd walk away with nothing. If his 650k house sells for only 500k thanks to covid. (They have said that property market may drop by 30%). The 80k left after paying out the mortgage (420k) and he still has to pay the estate agents fees and the solicitors. Very little left.


Will the boyfriend hang around knowing there little realisable money and 3 kids that aren't his to put up with? Probably move on after a year or two.

Will she claim to beg for forgiveness and ask Brad to take her back?
 
Last edited:

Number37

Anyhow, have a Winfield 25.
Oct 5, 2013
16,463
16,261
AFL Club
Sydney
No it's not.

Its a reasonable lifestyle having regards to all the circumstances of the marriage.

You might have had a ridiculous lifestyle during the marriage on account of marrying a billionaire. Doesn't mean you get half a billion dollars on separation though.

You'd certainly get a better separation asset split than if you were married to a burger flipper at Maccas however.

Im telling you now, there is nothing in Australian Law about 50/50 asset division. If you go into a divorce wanting 50/50 prepare to be disappointed more often than not.

I actually have a friend moving in to my joint next week. Ex-Stripper (current teacher) who paid off her entire first house from her Stripping money (and if you're smart and not a junkie, it's considerable coin). Her (now ex) Husband is claiming the lions share of that house (and the investment property they have) on account of his income passing hers when she left stripping behind to become a teacher.

They're likely going to sort it out amicably, but it's a tough one to get an accurate asset division there., and both parties have already brought in the lawyers
Depending on the length of the marriage, you most certainly could be entitled to live the life of a billionaire, post divorce.

You're ignoring/missing the most fundamental aspect of property settlements.
By virtue of your marriage/de facto relationship mine ceases to exist and is replaced by ours.
Each party files a list of their assets and liabilities.
Those 2 lists are combined, and the combined list is then split according to the property settlement.

The only way around is a pre-nup. The purpose of pre-nups is to say even if we are considered partners in law this will be always be just mine, it will never be ours.
 

Number37

Anyhow, have a Winfield 25.
Oct 5, 2013
16,463
16,261
AFL Club
Sydney
Snake_Baker and others claim feminism is a horrible, controlling system so they can present their own conservative, wrong views as new and revolutionary. Add-on a declared disdain for the Liberal and Labor parties so they can claim they're standing up against THE (WO)MAN!
Libertarians believe everyone is a SovCit. Except women, children, refugees, students, low paid workers, health workers, teachers, anyone that rejected their advances at the local coffee shop and others.
 

The Passenger

Mr. Mojo Risin'
Mar 25, 2003
31,270
19,007
Hasa Diga Eebowai
AFL Club
West Coast
It's pretty obvious that I wasn't referring to the resident cucks.

Stick to administering nightly foot massages and begging for a root once a month when "the bull" is occupied elsewhere. :thumbsu:
I wonder how "the bull" makes his first impression.

"I run six aliases on BigFooty and still manage to keep a 25 posts a day average on my main account"

That must leave them in a state of unparalleled anticipation.
 

(Log in to remove this ad.)


Top Bottom