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  5. Doctrine of Res Judicata in family law cases in Australia
13 May 2014

Res judicata is a Latin term which means that the issue before the court has already been decided by another court, with the same parties.  In case of family law it relates to property matters that have already been decided by another court.  More technically, where a cause of action, including the adjustment of property rights, has been fully and finally determined by a foreign court, the doctrine of res judicata applies and the prior adjudication of a cause of action estops parties from proceeding with the same cause of action in another forum.  The relief granted in such a situation is a permanent stay of the subsequent claim.  


The elements of the doctrine of res judicata were initially derived from the English case of Marginson [1939] 2 KB 426.  The elements are as follows:


  • The decision was judicial;
  • The decision was in fact pronounced;
  • The court or tribunal had jurisdiction over the parties and the subject matter;
  • The decision was final and on the merits;
  • The decision determined the same question as raised in later litigation; and
  • The parties to the later litigation were the parties to the earlier litigation.


In an era where family life is becoming more global, parties need to be aware of the defence of res judicata.  The main reason for the rule relates to preventing multiple cases between the same parties dealing with the same subject matter.


Australian cases considering res judicata

An example of a family law case in Australia dealing with res judicata is In the Marriage of Caddy and Miller (1986) 84 FLR 169.  In this case there had already been property proceedings in the United States which dealt with real estate in Australia as well as in the United States. It was held that the application of the doctrine of res judicata did not affect the actual existence of the right given by the Family Law Act 1975 (Cth), s 79, or the court’s jurisdiction to hear the application, but it affected the ability of the party to prosecute that right.  



The rule of estoppel by res judicata prevented a party from presenting or introducing evidence aimed at disputing the correctness or merits of an earlier decision in proceedings between the same parties about the same issues.  In Caddy and Miller the Full Court identified an important public policy issue, as follows:


“the doctrine [of res judicata] reflects the general interest of the community in the termination of disputes and in the finality and conclusiveness of judicial decisions, together with the right of the individual litigant to be protected from multiple suits for the same cause”


If you and you spouse are in a similar circumstance where one or both of you own property in countries outside of Australia, the doctrine of res judicata may apply to you.  If you require advice in this area please contact the Family Law team at HHG Legal Group.


This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.


*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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