Section 119 and Section 120 fall under Part XV titled “Miscellaneous” under the Family Law Act (1975). In this blog, we discuss key points in relation to Section 119 and Section 120.
Section 119: Married Parties May Sue Each Other
Section 119 of the Family Law Act allows married parties to sue each other and bring proceedings in contract or in tort against the other party. It is possible for a party to bring a claim in contract or tort against their spouse, such as in cases involving prenuptial agreements or where a party has committed a wrongful act against the other.
Section 119 of the Family Law Act allows a person who is entitled to receive maintenance under a family law order or agreement to bring proceedings in tort against another person who intentionally causes or assists in the deprivation of the maintenance.
It is important for parties to a family law agreement or order to comply with their obligations. Those who may be able to receive entitlement and maintenance should seek seek legal advice if they believe that they have been deprived of their entitlements.
In the case of Thorne v Kennedy [2017] HCA 49, the wife sought to set aside a prenuptial agreement that she had signed prior to her marriage to the husband. The wife argued that she had signed the agreement under duress and that the husband had exerted undue influence over her.
The court found that the wife had been subjected to undue influence and unconscionable conduct and that the prenuptial agreement was unenforceable. Moreover, the court also found that the husband had breached his duty of good faith and fair dealing by taking advantage of the wife’s vulnerability. They found that he was liable in contract for the losses that his wife suffered as a result of his conduct.
What About Property Settlement Proceedings?
While Section 119 discusses the concept of bringing proceedings in contract or tort, married parties can also commence proceedings in relation to property settlement or spousal maintenance.
This means that if one spouse believes they should get a share of the other spouse’s property, or if they believe they should get spousal maintenance payments, they can commence legal proceedings to seek a resolution.
Case Study: Property Settlement
Consider a case in which a husband and wife were together for 32 years and had two adult children. The High Court of Australia heard this matter in 2012. The couple separated in 2006, and the wife filed an application for property settlement under section 79 of the FLA.
The husband argued that the wife did not make any financial contributions, and should therefore not get property settlement under Section 79 of the Family Law Act. He also argued that the value of the property appropriately reflected the wife’s contributions as a homemaker and parent.
But the trial Judge rejected the husband’s claims, and made an order that the wife should receive 42% of the property pool. Following this, the husband made an appeal to the Full Court of the Family Court of Australia. The Full Court also upheld the decision of the trial judge.
The husband then filed an appeal to the High Court of Australia. He argued that the trial judge had made an error when he made the property settlement order. But, the High Court stated that the trial judge had not made any error in finding that the wife made indirect financial contributions to the improvement of property.
These indirect contributions were also significant, thereby allowing her to have a claim on the property and asset pool. The High Court also held that the trial judge had not erred in considering the non-financial contributions of the wife as a homemaker and parent. These contributions of the wife enabled the husband to spend more time at work to earn income.
Section 120 Family Law Act
Moreover, Section 120 of the Act states that there are no legal actions for concepts of criminal conversation, adultery and enticement. Before the establishment of “no-fault” divorce in Australia, parties used these concepts as grounds of divorce.
But, since the Family Law Act introduced a no-fault divorce system, the concept of fault, such as adultery, is not relevant to the divorce process. No-fault divorce means that a court can grant divorce on the sole ground that the marriage has irretrievably broken down
For example, consider a couple who were together for several years have decided to separate. They may have tried to reconcile their differences but have been unable to do so. They may have no children or they may have children who are adults.
Under Australian law, the couple would need to have been separated for at least 12 months before they can apply for a divorce. They would need to complete an application form and file it with the Family Court of Australia or the Federal Circuit Court, along with the required fee.
Once the court receives the application, it will set a hearing date, and the couple will be notified of the hearing date and time. If the court believes the couple were separated for at least 12 months and that there is no prospect of reconciliation, it will grant a divorce order.
In a no-fault divorce, the court will not consider the reasons for the breakdown of the marriage, and there is no need for either party to prove fault or wrongdoing. This process is often simpler and less stressful than having to prove fault.
Seek Advice from Family Lawyers
It is important to note that bringing proceedings in contract or tort against a spouse is not a common occurrence in family law matters in Australia, and parties should seek legal advice before pursuing any legal action against their spouse.
It is usually preferable for parties to resolve disputes through mediation or other alternative dispute resolution methods, rather than through litigation. Seek legal advice from our team at JB Solicitors for more information on Section 119 and Section 120 of the Family Law Act.
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