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Reconciliation and what it means in Family Law - Part 2
RECONCILIATION AND PROPERTY PROCEEDINGS
Hopefully you have read Part 1 of our Reconciliation Series, which explains the court’s obligation to consider the possibility of parties reconciling. If the court considers that there is a reasonable possibility, it may adjourn the proceedings so that the parties may explore this. This adjournment will only happen, however, if both parties agree to it. Under Section 13B(4) of the Family Law Act, if either party formally requests that the court proceedings continue, the court must do so as soon as practicable.
What happens if reconciliation occurs after orders have been made? Is a party required to comply with ongoing orders for spousal maintenance payments or an order for the sale of a property?
There is nothing specific in the Act to answer this question. The Full Court in Truscott and Truscott (1986) FLC 91-761 said:
“We consider that the Family Law Act contains its own provisions as to the discharge, supervision or variation of maintenance orders....Any periods of resumption of cohabitation may be taken into account, along with other circumstances, by the Court in exercising its discretion in enforcement proceedings.''
In exercising discretion, it seems unlikely that the court would enforce orders following the parties’ reconciliation. It would also be very much against the principle of reconciliation for one party to try to enforce orders made on the basis of separation, if they had recommenced their relationship!
However, in the event that parties were to reconcile and then separate again, the court would need to consider a number of factors with respect to either the enforcement or discharge of the original orders.
Section 79A(1A) enables the court to vary or set orders aside, if a person affected by the orders makes an application under section 79, with the consent of all the parties to the proceedings in which the order was made. If the Court considers it necessary, it may substitute a fresh order under section 79 and set aside the previous order. This enables parties to discharge an otherwise valid property settlement to overcome unintended economic hardship, or cater for unforeseen circumstances after the making of the original orders.
The Full Court in McCabe and McCabe (1995) FLC 92-634 found that the power under section 79A(1A) can be applied broadly, and even in the context of reconciliation. In that case, the court discharged the original orders and, when the parties separated again after their reconciliation, the court made further orders which took into account the whole of the relationship (not just the period between reconciliation and the second separation). The court made orders splitting the net assets based on an assessment of the parties’ contributions over the entire relationship. However, this principle is not applied consistently, with the outcome of each case being decided on its own facts and the precise circumstances of the parties.
As you can see, each case is different, whether minutely or extensively. Imagine the difficulties of applying the principle established in McCabe and McCabe if Brad Pitt and Jennifer Aniston were to reconcile? How would the court address the 15 years between divorce and reconciliation? Not to mention the potential complication of any mingling of finances or assets between Brad and Angelina, and the subsequent property settlement they too undoubtedly underwent!
As a result of the above, and the broad discretion of the court, if you are considering reconciling with your former spouse or partner, it is best to seek legal advice at the outset to inform yourself of the implications, and ensure that you do whatever may be necessary in relation to a previous property settlement or Orders. It is also important to note the uncertainty of any outcome if you and your partner separate again following reconciliation. In this regard, as with entering into any relationship or marriage, we recommend that you seek legal advice and consider the benefits of a Binding Financial Agreement.
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