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- Title
BANKRUPTCY AND THE FAMILY HOME: THE IMPACT OF RECENT DEVELOPMENTS.
- Authors
SARMAS, LISA; FEHLBERG, BELINDA
- Abstract
This article explores the effect of recent legal developments on the division of the family home in the context of bankruptcy of a spouse or de facto partner. While the traditional approach to division has been to determine the bankrupt's beneficial interest in the home (which vests in the trustee in bankruptcy), amendments to the Family Law Act 1975 (Cth) ('FLA') in 2005 now give family law courts jurisdiction to determine this issue, where there are FLA property proceedings on foot, using a structured statutory discretion under s 79 of the FLA. The authors examine the possible approaches that are now open to courts following these amendments. They argue that decisions of courts exercising both FLA and traditional bankruptcy jurisdiction suggest confusion about the appropriate principles to apply and that this has produced uncertain and sometimes questionable case outcomes. The authors call for further legislative reform that achieves greater clarity of principle and leads to the achievement of more just and equitable outcomes.
- Subjects
AUSTRALIA; BANKRUPTCY; HOUSING laws; DOMESTIC relations; BANKRUPTCY jurisdiction; JUDICIAL discretion; STATUTES; FAMILY law courts; LEGISLATIVE reform; ACTIONS &; defenses (Law)
- Publication
Melbourne University Law Review, 2016, Vol 40, Issue 1, p288
- ISSN
0025-8938
- Publication type
Article