Contributions to Property – Who Made Them – The Biggest Contributor may not always be the winner – One must consider the parties needs

10/04/2018

In a recent case conducted by Watson & Watson on behalf of the Husband in the Family Court of Australia, the Husband who had less assets and resources than the Wife became the effective winner in the case.

The Family Law Act 1975 provides that the division of property between spouses at the end of a marriage must be just and equitable. The Family Court of Australia looks at the contributions made by each of the spouses during the marriage – Financial, Non-Financial and Homemaker contributions.

In this case the Husband and wife had been married for 18 years and there were no children. The separation was not amicable and the Wife strongly opposed the Husbands Application. The Wife asserted that the Husband should not get anything.

At the time of the Hearing the Wife had control of all the assets of the marriage and the Husband’s only income was a government pension.

The assets of the marriage included real estate, superannuation, a company and intellectual property.  The Wife’s assertions were that she had come into the marriage with assets superior to those brought in by the Husband and that she had most (if not all) of the financial contributions that resulted in acquiring the assets available for division or had carried out the work that increased to value of the assets.

The husband acknowledges that the wife made superior financial contributions but asserted that he too had made contributions both financial and non-financial.

The Family Court of Australia was required to consider the financial and non-financial contributions made by each of the parties to determine the outcome of the division.  The Family Court of Australia had to go further and also consider whether an adjustment should be made in favour of one of the spouses by reason of the matters set out in section 75(2) of the Family Law Act.

In this case, a significant factor was that the Husband suffered from depression and also a mild mental illness which affected the marriage and had become more severe and pronounced during the course of the marriage.  The Wife acquired the real estate in her sole name at the very end of the marriage.  However the Family Court of Australia found that the Husband had made a significant contribution to other assets of the marriage which resulted in the Family Court of Australia ordering a cash payment to the Husband and ordered that the Wife’s superannuation entitlements be spilt between the Husband and Wife.

Watson & Watson prepared the case on behalf of the Husband and obtained the appropriate expert medical evidence and documentation to prepare and then finally have the Husband’s case heard by the Judge.

The outcome was one where the person who made the more modest financial contributions but had the greater need resulted in the bigger contributor and better income earner not achieving a greater share of the asset pool.

If your marriage or de facto relationship has broken down and you are negotiating financial settlement with your spouse/partner and either you or your spouse/partner are experiencing a mental illness and/or depression and you are concerned as to how this will effect your entitlements and financial settlement, please contact Richard Watson Family Law Solicitor or his assistant Shereen Da Gloria to discuss your matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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