The Case of Leena [2025]: No, It’s Not 50/50 (And It Never Has Been)

“It was a long marriage, so it must be 50/50.” That is a familiar assumption, but one that is also incorrect.

The Full Court’s recent decision in Leena [2025] FedCFamC1A serves as a reminder that Australian family law has never operated on a presumption of equal division. There is no default starting point of equality from which the Court “adjusts”. Property settlement is, and always has been, a discretionary evaluative exercise.

A Discretionary Framework - Not a Community Property System

Unlike some overseas jurisdictions, Australia does not apply a community property regime. Assets are not automatically divided equally because they were acquired during a marriage.

As reaffirmed in the case of Leena and earlier High Court decisions including Stanford v Stanford (2012) HCA 52, the Court:

• Identifies and values the property pool;
• Assesses contributions (financial, non-financial, homemaker and parenting);
• Considers future needs; and
• Determines whether the outcome is just and equitable.

The inquiry is not “why depart from 50/50?”.It is rather: what division properly reflects the parties’ contributions and circumstances?

That distinction is critical.

Why the Assumption Is Risky in Complex Matters

In modest asset pools with broadly similar contributions, an outcome near equality may emerge. But that is a function of the evidence, not a rule of law.

In matters involving:

• Significant premarital wealth;
• Inherited or intergenerational assets;
• Corporate or trust structures; or
• Business interests built through one party’s risk, capital or expertise,

the “50/50” mindset can materially distort strategic thinking.

Contributions are not neutralised by time alone. Nor does the passage of a long relationship automatically convert inherited or pre-relationship assets into jointly owned property. The analysis turns on how assets were treated, preserved, enhanced or integrated over the course of the relationship.

For clients with substantial or structurally complex asset bases, this nuance often shapes negotiation strategy and litigation risk from the outset.

Duration Is Relevant - Not Determinative

The length of relationship is one factor in a broader evaluative process. Courts are cautioned against rule-of-thumb reasoning tied solely to duration. The assessment remains holistic and evidence-driven.

A Practical Perspective

In our experience, assumptions about equal division can influence expectations long before formal advice is obtained. That can affect negotiation posture, commercial decision-making and, in some cases, unnecessary escalation.

A clear understanding of the discretionary framework allows for:

• Realistic assessment of entitlement and exposure;
• Thoughtful protection of premarital or inherited assets; and
• More effective and commercially focused negotiations.

The Position Reaffirmed

The case of Leena does not introduce new doctrine. It re-anchors the analysis to first principles.

Australian property settlement begins with evidence of contributions and future needs - not an assumption of equality.

 

If you need guidance navigating these issues, feel free to contact me directly:

E: cheslop@ajandco.com.au P: (03) 7054 5600