She has the Breast Implants, But What do I Get?

With the growing popularity of non-rehabilitative cosmetic surgery, there has been an increase in partners seeking compensation for the use of matrimonial funds that were used to enhance their partner’s physical appearance.

It is no longer just a case of breast augmentation for women. Many more men today are seeking to have cosmetic surgery including from face-lifts, tummy tucks and other forms of cosmetic surgery.

This raises issues such as who wanted the cosmetic procedure, when was the procedure performed and who has benefited from the procedure?

Is this covered under property settlement?
Now the relationship is over, is it just and equitable to ask the “enhanced” spouse to pay compensation for something that cannot be easily reversed and that was a joint decision of the relationship?
The issue of cosmetic surgery is yet to be adjudicated by a Family Court in Australia but has been adjudicated in other jurisdictions. Despite the absence of case law in Australia, it is unlikely the Family Court would characterise cosmetic surgery as property or a financial resource. It is more likely that it would be considered by the Court as part of a joint economic sharing with neither party receiving any “compensation” for the “benefit” that the “enhanced” spouse has retained.
What may be a consideration of the Court is where one spouse used matrimonial funds for the procedure without the other party’s consent, but this may be difficult to prove. Another consideration of the Family Court may be the Human Tissue and Transplant Act 1982 (WA) which provides for the prohibition on the sale or supply of tissue for valuable consideration with the definition of tissue including non-regenerative tissue.

If one spouse paid for non-rehabilitative cosmetic surgery post-separation using matrimonial funds then there may be grounds for arguing that these funds should be added back to the matrimonial pool available for adjudication. However, this argument assumes that there are sufficient funds to be added back to the matrimonial pool.

So what to do?

It is probably advisable that you seek the proper legal advice from a reputable law firm such as Dimond Family prior to separation to enable you to take steps to protect matrimonial assets rather than pursuing money which has already been spent.



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