Justices think about it

just and equitableWhen all is said and done – when the judge has heard a family law matter, heard all the evidence, read everything presented by the lawyers, considered what the law says on the facts of the case and reached a decision based on the facts – the judge can still make one last tweak to the judgment.

This is called the just and equitable factor.

In Family Law, this factor allows the judge to give either the husband or wife a little bit extra when dividing the property because if this extra is not given, the division of the property will not be a fair one.

The just and equitable factor also allows judges to divide the property in anyway they see fit to make it a fair division.

The classic example is where the husband and wife own joint superannuation worth $300,000 and a property worth $300,000 (don’t ask, I have been using this example way before the property market boom!) and both are entitled to a 50/50 split.

To make it a fair split, the judge can order

  • that the house be sold and the money split between the husband and the wife, and
  • that the super be also split between the husband and the wife.

So both the husband and the wife end up with $300,000 each.

Now if the judge gave the house to the wife and the super to the husband – and the husband had years to go before legal retirement – then the wife will have had a valuable asset that she can sell at anytime and cash in – while the husband would have been left with money that he cannot touch or benefit from for years!   Hardly fair or reasonable!

By: Nadia Messiha

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