Post-Separation Property Settlement After 16 Years of Assurances: When Does s 79(2) Make It Unjust and Inequitable to Reopen Existing Property Interests?

Based on the authentic Australian judicial case Bevan & Bevan [2014] FamCAFC 19, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Full Court of the Family Court of Australia (appeal heard and determined on written submissions)

Presiding Judge: Bryant CJ, Finn and Thackray JJ

Cause of Action: Appeal concerning alteration of property interests under Family Law Act 1975 (Cth), focusing on the threshold question under s 79(2) as informed by Stanford & Stanford

Judgment Date: 19 February 2014

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Family Law Act 1975 (Cth) s 79(2)

Keyword 3: Just and equitable threshold

Keyword 4: Long delay and limitation period pressure

Keyword 5: Post-separation representations and reliance

Keyword 6: Re-exercise of discretion on appeal

Background

This dispute sits in the uncomfortable space between legal entitlement and lived reality. After a long marriage, the parties’ relationship effectively ended decades before litigation was commenced. For years, the Respondent (the husband at first instance) repeatedly represented to the Appellant (the wife at first instance) that she could keep all the Australian property for herself and for their children, while he would build a life elsewhere. Over time, the Appellant managed the property with the practical autonomy of a sole owner: assets were consolidated in her name, transactions occurred without accounting to the Respondent, and the parties no longer held property in common.

Years later, near the end of the statutory limitation period, the Respondent commenced proceedings seeking a property settlement. The central controversy was not simply how much each party “deserved”, but whether it was legally and equitably appropriate to disturb a long-settled property arrangement that had been created, and allowed to crystallise, by the Respondent’s own repeated assurances and prolonged inaction.

Core Disputes and Claims

Core legal focus: Whether, pursuant to s 79(2) of the Family Law Act 1975 (Cth) and the principles stated in Stanford & Stanford, it was just and equitable to make any order altering the existing legal and equitable interests in property, where:

1. the property was held in the Appellant’s name,
2. the Respondent had made repeated representations over many years that the Appellant could retain the Australian assets, and
3. the Respondent delayed commencing proceedings until close to the expiration of the limitation period.

Relief sought:

Appellant’s position: No order should be made altering existing interests, because it would not be just and equitable to interfere with the settled ownership structure created through the Respondent’s assurances and acquiescence.

Respondent’s position: Orders should be made adjusting property interests, contending for a substantial payment to be made to him, and pressing for a larger asset pool than that adopted at first instance.

Chapter 2: Origin of the Case

The litigation did not begin with a single explosive event. It emerged from a slow, decades-long shift from marriage to separation-in-fact, followed by an equally slow shift from shared property assumptions to separate property conduct.

The parties had been married for many years. The Respondent left the relationship in the mid-1990s. After his departure, the parties’ personal and financial lives did not immediately sever cleanly. They remained connected through family events, periods of time spent together, and ongoing financial intermingling. The relationship, in practical terms, became ambiguous: neither a functioning marriage nor a neatly finalised separation.

Over this period, the Respondent made repeated statements to the Appellant to the effect that the Australian assets were for her and the children. That message, repeated over years, created a stable expectation: the Appellant could treat the property as hers and structure her life accordingly.

The financial interweaving was not absent, but it was uneven and episodic. The Respondent at times paid money into accounts accessible by the Appellant, and there were references to an inheritance and the disposal of a share portfolio. Yet, critically, these contributions occurred against a continuing backdrop of assurances that the Appellant would retain the Australian property.

As years passed, the Appellant’s conduct became consistent with ownership. She held assets in her name. She dealt with property without reference to the Respondent. The parties ceased holding property in common. This was not a short-term administrative convenience: it was a long-term pattern of life and finances.

The decisive moment that converted a long-settled reality into litigation was the Respondent’s late decision to pursue a property settlement. The record reflected that notice of an intention to pursue a financial claim was not given until much later, and proceedings were commenced close to the limitation deadline. By then, the practical arrangements had hardened into the present legal interests: the Appellant held legal title to the assets, and the Respondent’s claim required the Court to decide whether it was justified to undo that settled state of affairs.

Chapter 3: Key Evidence and Core Disputes

Appellant’s Main Evidence and Arguments

1. Evidence of repeated representations by the Respondent that the Appellant could retain the Australian assets for herself and for the children, including assurances said to have continued over many years, and into the later period of separation-in-fact.

2. Evidence of long-term conduct consistent with the Appellant being treated as the owner:

   • assets held in the Appellant’s name,
   • disposal of previously jointly held property,
   • accumulation and management of assets without reference to the Respondent,
   • lack of accounting to the Respondent, without censure.
3. Evidence addressing delay:
   • the Respondent’s failure to commence proceedings earlier,
   • the practical consequences of delay on memory and documentation, especially in relation to contested financial contributions.
4. Evidence resisting the Respondent’s asserted contributions where unsupported by documents:
   • particular controversy about the inheritance amount and timing,
   • controversy about the share portfolio proceeds and the lack of bank and trading documents to substantiate claimed figures.
5. Legal argument focusing on the Stanford & Stanford framework:
   • the Court must first identify existing legal and equitable interests,
   • then determine whether it is just and equitable to make any order altering those interests,
   • only then, if the threshold is satisfied, consider contribution assessment and any adjustment factors.

Respondent’s Main Evidence and Arguments

1. Evidence asserting that despite separation and assurances, he had made significant contributions over time and therefore should receive an adjustment of property interests.

2. Assertions regarding post-separation contributions including:

   • an inheritance said to have been received from his mother’s estate and deposited into a joint account,
   • the sale of a share portfolio said to have produced substantial proceeds deposited into a joint account,
   • income deposited into joint accounts during periods living and working in Australia,
   • assistance with renovations to a property.
3. Legal argument seeking to frame the matter as a conventional property settlement, using the four-step approach as a disciplined structure for identifying property, assessing contributions, considering adjustment factors, and making final orders.

4. Resistance to the Appellant’s reliance on representations by arguing that it was inappropriate to give determinative effect to assurances without fitting them within a defined equitable doctrine such as estoppel.

Core Dispute Points

1. Threshold dispute under s 79(2): Was it just and equitable to make any order at all altering existing property interests?

2. Representation dispute: What was the extent, context, and practical significance of the Respondent’s repeated assurances that the Appellant could keep the Australian assets?

3. Delay dispute: What weight should be given to the Respondent’s delay in commencing proceedings, including the proximity to the limitation period expiry?

4. Evidence dispute about contributions:

   • whether the inheritance was materially larger than documented and what became of it,
   • whether the share portfolio proceeds were as large as alleged and whether they were deposited into joint accounts,
   • what weight to attribute to sporadic post-separation financial intermingling given the continuing assurances.
5. Asset pool dispute (on re-exercise): Whether certain assets excluded at first instance should be included, and the proper approach to asset identification without treating s 79 as an accounting exercise.

Chapter 4: Statements in Affidavits

Affidavits in family law property litigation perform two functions at once: they present evidence, and they present a theory of the case. In this matter, the parties’ affidavits were not merely competing timelines; they were competing stories about what the separation meant and what the property arrangements were supposed to represent.

The Appellant’s affidavit strategy was anchored in continuity and reliance. The Appellant framed the post-separation period as a long-running settlement-in-fact: repeated assurances, predictable conduct, and a life structured around the expectation of sole ownership of Australian assets. The Appellant’s narrative did not depend on proving a formal agreement or a technical equitable plea. It depended on demonstrating that the lived reality created by the Respondent’s words and conduct made later interference unfair in a principled way.

The Respondent’s affidavit strategy was anchored in residual entitlement. Even if separation occurred long ago, the Respondent sought to show ongoing financial connection and continuing contributions which, in his account, undermined the notion that the Appellant’s ownership was final or exclusive. This strategy required the Respondent to persuade the Court that contributions and shared financial pathways remained real, material, and not simply incidental.

A key fault line appears when the same topic is described differently:

1. Inheritance:
   • The Respondent’s affidavit asserted an approximate figure, given many years after the event, without documents.
   • The Appellant’s affidavit offered a precise figure supported by documentary material, while also indicating uncertainty about how the funds were used and where they were deposited.
2. Share portfolio:
   • The Respondent’s affidavit asserted the portfolio’s peak value and sale proceeds in rounded terms, also without documentary verification.
   • The cross-examination record revealed significant pressure on this point, with questions directed at the absence of documents evidencing sale transactions or deposits.
3. Representations:
   • The Appellant’s affidavit treated the assurances as the backbone of the post-separation arrangement.
   • The Respondent’s case sought to limit the effect of those assurances, pointing to post-separation contributions and ongoing relationship ambiguity.

Strategic Intent Behind Procedural Directions on Affidavits

The Court’s management of affidavit evidence in property cases is designed to force parties to commit to their version early, and to expose the weak joints of each narrative at hearing. In a dispute where the central issue is a threshold question under s 79(2), affidavits also act as a forensic map: they reveal whether a party can prove the foundational facts that justify disturbing existing property interests.

Where a party asserts large contributions without documents, or asserts key dates incorrectly, affidavit discipline becomes decisive. It shapes the Court’s willingness to accept contested financial assertions, particularly when the opposing party has produced contemporaneous records.

Chapter 5: Court Orders

Before final determination, the procedural architecture typically requires directions that focus the dispute:

1. Directions for the filing of affidavits and any responsive affidavits to crystallise competing factual narratives.

2. Directions concerning disclosure, including the production of bank statements, transaction records, and documents evidencing asserted contributions, particularly where one party asserts significant financial events such as inheritance distributions or liquidation of investments.

3. Listing of the matter for hearing, including allocation of time for cross-examination and submissions.

4. On appeal, directions seeking written submissions specifically directed to the re-exercise of discretion after appellate error was identified at first instance, including whether the matter should be remitted or determined by the appellate court.

These arrangements matter because the dispute turned on what could be proved, not merely what was asserted. When a claim is commenced late, the Court’s emphasis on documentary support becomes sharper, because delay tends to degrade memory and availability of records.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing dynamic in this matter can be understood as a collision between two styles of proof.

One style is narrative continuity: repeated assurances plus decades of conduct consistent with sole ownership. The other style is residual entitlement: contributions plus the general notion that marriage contributions should not evaporate simply because time has passed.

The cross-examination pressure points centred on the Respondent’s asserted post-separation financial contributions. Where large sums were alleged, the absence of documents became a central forensic weakness. The questioning drove at a simple problem: if a party asserts a major deposit or sale, where is the proof?

At the same time, the Appellant’s position did not require proving a formal contract or a binding financial agreement. The Appellant’s case required the Court to accept that the Respondent’s repeated representations, combined with the long-term settled state of ownership, meant that the Court should decline to interfere at all.

The logic of the hearing therefore funnels into the Stanford & Stanford threshold: the Court must have a principled reason to disturb existing legal and equitable interests. If the Respondent cannot prove a compelling basis for interference, the dispute ends before any percentage division is calculated.

Judicial Reasoning

The Court’s reasoning is best understood as a two-stage gate:

1. Identify existing legal and equitable interests.
2. Decide whether it is just and equitable to make any order altering those interests.

Only if the gate opens does the Court proceed to contributions and adjustments.

In this matter, the Court accepted that the Appellant held legal title to the assets, and then asked whether the Respondent had established a principled basis for interference given the history of assurances and delay.

“Having determined that the wife is the legal owner of all of the assets, the question arises whether it would be just and equitable to make any order.”

This statement is determinative because it makes clear that entitlement analysis is conditional. The Court is not obliged to reshape property merely because a marriage ended. The statutory threshold operates as an explicit restraint on the Court’s otherwise broad discretion.

Chapter 7: Final Judgment of the Court

The Court allowed the appeal and set aside the first instance property orders.

Final outcome:

1. The appeal was allowed.
2. The orders made at first instance were set aside.
3. The application for adjustment of property interests and the related pleadings were dismissed.
4. There was no order as to costs.
5. Costs certificates were granted to both parties under the Federal Proceedings (Costs) Act 1981 (Cth), reflecting that the appeal succeeded on a question of law.

The practical effect was that no order was made interfering with the Appellant’s existing property interests, leaving the Australian assets as held.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This case is jurisprudentially significant because it demonstrates how s 79(2) operates as a genuine threshold restraint after Stanford & Stanford. It also illustrates that the Court’s discretion is not simply a fairness-based redistribution mechanism. It is a structured statutory power requiring a principled justification for interference with existing property interests.

The unusual feature is the combination of:
1. repeated representations about future ownership,
2. long delay close to the limitation period expiry, and
3. a settled ownership structure where assets were held in one party’s name, with long-term acquiescence.

Importantly, the Court did not require the Appellant to prove a formalised estoppel doctrine as a precondition to resisting orders. The Court treated the representations and the long-settled arrangements as factors that could make it not just and equitable to intervene at all.

Judgment Points

1. The s 79(2) threshold is a real gate, not a procedural formality.

A common misunderstanding is that once parties are separated, property orders will follow as a matter of course. The Court emphasised that separation often satisfies the threshold, but not always. The just and equitable requirement is qualitative, case-specific, and can defeat the application entirely.

This protects parties from late attempts to rewrite long-settled property realities where the circumstances show that interference would be unjust in a principled sense.

1. Representations can reshape the fairness landscape without being pleaded as an equitable defence.

The Respondent argued that because the Appellant did not fit the facts into a recognised estoppel category, the assurances should not be determinative. The Court rejected the idea that the Appellant bore an onus to construct a formal equitable defence.

The Court’s approach was that the Respondent bore the onus of demonstrating a principled basis for interference. If the Respondent’s own words and conduct created and sustained the existing state of affairs, that reality can weigh heavily against intervention.

1. Delay is not merely a procedural blemish; it changes evidentiary reliability.

Long delay affects:
– memory,
– witness availability,
– access to transaction documents,
– the capacity to test claims about large financial events.

In this matter, contested claims about inheritance and share portfolio proceeds were made without adequate documentation. Delay magnified the risk of error and the unfairness of forcing a late accounting exercise. The Court treated delay as a substantive consideration in the just and equitable balance, especially given the proximity to the limitation period.

1. The Court resisted turning s 79 into an accounting exercise.

The Respondent sought to expand the asset pool and revisit exclusions. The Court reaffirmed that not every item must be brought to account if reasons are given for a pragmatic approach. The point is to exercise a broad discretion, not to perfect a ledger.

This matters strategically: parties who seek to reopen every asset line without a principled explanation can appear to be re-arguing rather than addressing the statutory threshold.

1. Documentary precision defeats approximate memory in contested financial contributions.

Where a party asserts major sums received or deposited, and the other party produces contemporaneous documents showing a different figure, the Court is likely to prefer the documented account, particularly where the asserting party concedes difficulty with dates or cannot substantiate claims with bank or transaction records.

This is not merely a credibility issue; it is the Court protecting itself from making findings on uncertain financial history, especially in a late claim.

1. Contributions made after representations can carry special significance.

The Court signalled that where one party has promised the other can retain assets, later contributions by the promising party may be more probative in deciding whether the promise was genuine and whether interference would be unjust. If assurances continued after disputed financial events, the Court can infer that the promising party intended the other to retain even those assets or proceeds.

This subtle shift in contribution weighting is an example of context-sensitive discretion: the timing and relational meaning of contributions matters, not merely the dollar value.

1. The Court treated the existing legal title as the stable baseline, not as a technicality.

The Court began by identifying existing legal and equitable interests. Once it concluded the Appellant held legal ownership of the assets, the Respondent faced the heavy task of justifying why the Court should disturb that ownership decades later.

This is a practical lesson: in long-separated cases where title has been consolidated and treated as final for years, s 79(2) can function as a protective barrier against late claims.

1. The Court cautioned against overgeneralising.

The Court expressly signalled that this outcome should not be treated as a simple “delay equals dismissal” rule. The discretion is wide, and each case turns on its facts. That warning is strategically important for practitioners: it prevents lazy analogies and forces careful factual comparison, especially on representations, acquiescence, and the settlement-in-fact nature of the parties’ arrangements.

Legal Basis

Statutory provisions and principles applied included:

1. Family Law Act 1975 (Cth) s 79, including:
   • the power to alter property interests,
   • the threshold requirement in s 79(2) that the Court be satisfied it is just and equitable to make the order.
2. Family Law Act 1975 (Cth) s 75(2), relevant to adjustment considerations if the threshold were crossed and the Court proceeded to evaluate future needs and circumstances.

3. The Stanford & Stanford framework:

   • first identify existing legal and equitable interests,
   • then consider whether it is just and equitable to make any order altering those interests,
   • only then proceed to the conventional contribution and adjustment analysis.
4. Appellate framework for re-exercise of discretion:
   • the appeal proceeded by way of rehearing,
   • the Full Court’s task was to re-exercise the discretion after identifying error at first instance, considering the evidence and drawing appropriate inferences.

Evidence Chain

The victory foundation can be expressed as:

1. Established baseline:
   • assets held in the Appellant’s name,
   • long-term uncontested possession and management consistent with ownership.
2. Assurances:
   • repeated representations by the Respondent that the Appellant could keep the Australian assets for herself and for the children.
3. Conduct consistent with finality:
   • the Respondent gave the Appellant power of attorney,
   • the Respondent allowed disposal of jointly held property,
   • the Respondent did not require accounting,
   • the parties no longer held property in common.
4. Delay:
   • proceedings commenced close to the limitation period expiry,
   • notice of intention to make a financial claim was late,
   • evidentiary risks increased due to passage of time.
5. Weakness in proof of asserted post-separation financial contributions:
   • contested inheritance amount resolved on documented evidence rather than approximation,
   • share portfolio claims undermined by absence of documentary substantiation.
6. Judicial conclusion:
   • the combined effect of assurances, circumstances in which they were made, and substantial delay meant it was not just and equitable to interfere with the existing property interests.

Judicial Original Quotation

“The onus is on the husband to show some principled reason for the Court to interfere.”

This statement is determinative because it flips the common expectation that a responding party must prove a technical defence to resist orders. Instead, it frames s 79(2) as a requirement that the applicant justify intervention, especially where the existing ownership structure was created and maintained with that applicant’s consent or acquiescence.

Analysis of the Losing Party’s Failure

1. Late litigation strategy without a compelling threshold justification.

The Respondent approached the dispute as though a conventional property settlement analysis would inevitably follow separation. The Court treated the threshold question as decisive. Without a principled reason to disturb existing interests after many years of settled arrangements, the application failed before the Court needed to quantify entitlements.

1. Evidentiary fragility on major contribution claims.

The Respondent asserted significant financial events but lacked documentary support. In a long-delayed claim, approximate memory without records is especially vulnerable. The Court preferred precise documentary material and declined to accept uncorroborated large figures.

1. Inability to neutralise the representation history.

The Respondent did not successfully displace the evidence that assurances continued even after contested financial events. That continuity allowed the Court to infer that the Respondent intended the Appellant to keep the Australian assets, weakening the argument for later interference.

1. Delay compounded fairness concerns.

The delay was not treated as a mere tactical misstep; it became part of the substantive fairness calculus. It increased evidentiary uncertainty and reinforced the sense that the Appellant had been left to arrange her affairs on the assumption of finality.

1. Overreliance on formal doctrinal critique of estoppel.

By focusing on whether the Appellant had identified a precise estoppel species, the Respondent underestimated the statutory discretion. The Court did not require the Appellant to plead equity to win. The statutory threshold and the factual matrix were sufficient.

Implications

1. A promise repeated over years can become a legal reality, even without a formal written agreement. If you tell someone for long enough that something is theirs, and you let them live as though it is, the law may treat your late change of heart as too late.

2. Delay carries a relatively high risk in property litigation. Even if a claim is technically within time, a long period of silence can shape what the Court considers fair and principled, especially if the other party has relied on stability.

3. Documents are not just helpful; they are often decisive. If you allege a major financial event, you should expect the Court to look for bank records, transaction confirmations, and contemporaneous evidence.

4. The first question in a property settlement is not “what split is fair?” The first question is whether it is just and equitable to make any order at all. That single gate can decide everything.

5. Litigation choices should be made early and deliberately. If you want finality, formalise it when you can. If you intend to claim, give notice and act in time. The longer you wait, the more the law may treat the existing reality as the fair outcome.

Q&A Session

Q1: If property is in one party’s name, does the other party automatically lose?

A1: No. Title is a starting point, not the end. The Court can alter interests under s 79. However, the applicant must first establish it is just and equitable to interfere. In a long-delayed case with strong evidence of settled arrangements and assurances, title can become a powerful baseline against late interference.

Q2: Do you need a formal estoppel argument to rely on the other party’s promises?

A2: Not necessarily in the context of s 79(2). The Court can treat representations and the surrounding circumstances as part of the statutory discretion. The key is whether those facts make it unjust and inequitable to disturb existing interests, not whether they fit a strict equitable formula.

Q3: What is the biggest practical lesson for people after separation?

A3: Do not drift. If you want to keep property arrangements as they are, formalise them where possible. If you believe you have a claim, act promptly, give clear notice, and preserve documents. Time changes evidence, and evidence changes outcomes.

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Family Law Property Settlement Appeal – s 79(2) Just and Equitable Threshold in a Long-Separated Marriage with Repeated Post-Separation Representations and Delay

Judgment Nature Definition: Final Judgment on Appeal with Re-Exercise of Discretion and Dismissal of Property Adjustment Application

2. Self-examination of Core Statutory Elements

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

Core Test (Existence of De Facto Relationship – Section 4AA)

Duration of the relationship: General rule tends to be 2 years, unless exceptions apply.

Nature and extent of common residence: The Court examines whether the parties lived together, and whether cohabitation was continuous or intermittent.

Whether a sexual relationship exists: The Court considers whether a sexual relationship existed, noting that absence does not necessarily negate a relationship.

Degree of financial dependence or interdependence: The Court looks for financial support arrangements, shared accounts, and practical financial reliance.

Ownership, use and acquisition of property: The Court considers whether property was in joint names or separate, and how assets were used during the relationship.

Degree of mutual commitment to a shared life: The Court assesses whether the relationship was casual or committed, including plans and mutual support.

The care and support of children: The Court considers whether the parties jointly cared for and supported children.

Reputation and public aspects of the relationship: The Court considers how family, friends, and the community viewed the parties’ relationship.

Registration of the relationship: If the relationship was registered under State or Territory law, that may support a finding of a de facto relationship.

Whether the relationship is or was one of convenience: The Court considers whether the relationship was genuine or primarily for convenience, which may affect the overall characterisation.

Property Settlement – The Four-Step Process

Identification and Valuation: Determine the net asset pool as at hearing or as otherwise appropriate, being assets minus liabilities, acknowledging that the Court’s discretion is not an accounting exercise, provided the approach is explained.

Assessment of Contributions: Consider financial contributions, non-financial contributions, and contributions to the welfare of the family including homemaker and parenting contributions. Timing and context can matter, and the weight given to contributions may vary depending on the factual matrix.

Adjustment for Future Needs (s 75(2) Factors): Consider age, health, income earning capacity, care of children, financial resources, and other relevant circumstances. The adjustment is discretionary and tends to be modest to moderate depending on disparity and risk.

Just and Equitable: The final check is whether the proposed division is fair in all the circumstances, and, critically, whether the Court should make any order at all, recognising the threshold constraint in s 79(2).

Parenting Matters (Section 60CC of the Family Law Act 1975)

Primary Considerations: The benefit to the child of having a meaningful relationship with both parents versus the need to protect the child from physical or psychological harm, with protection from harm given greater weight.

Additional Considerations: The views of the child depending on maturity, each parent’s capacity to provide for needs, practical difficulties and expense of spending time, and any other matters relevant to the child’s best interests.

3. Equitable Remedies and Alternative Claims

Even where statutory pathways are uncertain or constrained, parties sometimes consider equity and common law doctrines as alternative routes. These should be assessed carefully and tend to be fact-sensitive.

Promissory / Proprietary Estoppel

Did the other party make a clear and unequivocal promise or representation, such as a repeated assurance that specific property would be retained by you?

Did you act in detrimental reliance, such as foregoing the opportunity to formalise, refraining from bringing proceedings, investing time and money into maintaining or improving property, or structuring life decisions around the assurance?

Would it be unconscionable for the other party to resile, given the length, repetition, context, and the degree to which the promise shaped your life decisions?

Result Reference: Even without a written contract, equity may estop a party from departing from their representation where reliance and unconscionability are established, although outcomes can be uncertain and the evidentiary burden can be significant.

Unjust Enrichment / Constructive Trust

Has the other party received a benefit at your expense, such as money, labour, or value uplift created by your efforts?

Is it against conscience for the other party to retain that benefit without recognising your interest or compensating you?

Result Reference: The Court may order restitution or declare a beneficial interest through a constructive trust in appropriate circumstances, noting that family law statutory remedies may overlap and the best forum and cause of action must be chosen with care.

Procedural Fairness

In family law property matters, procedural fairness typically concerns the fairness of the hearing and the opportunity to be heard, including proper disclosure. If disclosure failures occur, they may affect findings and orders, and may justify procedural applications.

Ancillary Claims

If a property settlement claim is weak due to the s 79(2) threshold, parties may consider whether there are other avenues such as debt claims, contractual claims, or equitable claims, noting that jurisdictional issues and limitation periods can be complex and should be assessed cautiously.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

Limitation Period: Post-divorce property applications under the Family Law Act have a statutory time limit, and applications outside time tend to require leave, which can involve a relatively high evidentiary burden.

Jurisdiction: The Court must have jurisdiction over the parties and the subject matter, including whether the proceedings are properly brought in the relevant registry and in the correct court.

Disclosure and Evidentiary Foundations: A party asserting major financial events tends to need documentary support; otherwise the risk of adverse findings can be relatively high.

Exceptional Channels

Leave to Proceed Out of Time: Where limitation has expired, leave may be sought, often requiring proof of hardship and an adequate explanation for delay, and the prospects of success may be weighed.

Settlement-in-Fact Circumstances: Even within time, exceptional facts such as long-settled arrangements, repeated assurances, and acquiescence may lead the Court to decline interference under s 79(2), depending on the overall justice and equity of intervention.

Suggestion: Do not abandon a potential claim simply because a standard threshold appears adverse. Carefully compare your circumstances against exceptions and discretionary factors, noting that outcomes tend to be fact-specific and can turn on evidence quality and timing.

5. Guidelines for Judicial and Legal Citation

Citation Angle:

It is recommended to cite this case in legal submissions involving the s 79(2) threshold after Stanford & Stanford, particularly where there is an argument that it is not just and equitable to disturb existing property interests due to long delay, post-separation assurances, and settled ownership structures.

Citation Method:

As Positive Support: Where your matter involves a long-separated relationship, repeated representations about property ownership, and a settled state of legal title and conduct, citing this authority can strengthen an argument that the applicant bears the onus of demonstrating a principled reason to interfere.

As a Distinguishing Reference: If the opposing party cites this case, emphasise differences such as the absence of repeated assurances, a materially shorter delay, stronger documentary evidence of post-separation contributions, or a property structure that remained genuinely joint and unsettled.

Anonymisation Rule: Do not use real party names. Use procedural titles appropriate to the jurisdiction, such as Appellant and Respondent, and where necessary identify their roles as at first instance without naming them.

Conclusion

This judgment compresses a powerful message into a disciplined statutory structure: the Court does not redistribute property simply because a marriage ended; it intervenes only when it is just and equitable to do so, and that question can end the case before any percentages are calculated.

Golden Sentence: True self-protection in family property disputes begins long before court papers are filed, by understanding how words, time, and evidence can quietly become the law.

Disclaimer

This article is based on the study and analysis of the public judgment of the Family Court of Australia (Bevan & Bevan [2014] FamCAFC 19), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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