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Author: Samantha Wilson
Published: 17 April 2024
Pages: 23

Introduction

In Sutton v Bell the Supreme Court confirmed that s 44 of the Property (Relationships) Act 1976 (the PRA or the Act) can apply to a disposition made before a de facto relationship has commenced. The Court also held that the approach in Regal Castings Ltd v Lightbody applies to determine whether a disposition is made in order to defeat a partner’s claim or rights under the Act. The decision confirms s 44 as an increasingly effective tool in proceedings under the PRA to claw back property that would otherwise have become relationship property, had it not been disposed of to a trust.

This paper provides a brief history of s 44 and the development of the relevant legal principles. It then examines the decision in Sutton v Bell and addresses the implications of the Court’s clear message that the contracting out provisions offer the only legitimate pathway for those who seek to avoid the statutory regime.

Content outline

• Section 44
• Sutton v Bell
• Section 44 can apply to a disposition made before the commencement of a qualifying relationship
• The question of timing
• The test
• In order to defeat
• Remedies under s 44
• Contracting out of the Property (Relationships) Act 1976