No Contributions Can Result in no property division – The Case of Babray

30/03/2020

A recent case determined by the Federal Circuit Court of Australia highlights the need for a party who seeks property division to have made contributions.  Just being married or in a de facto relationship does not guarantee a property settlement. 

The Court looks at what is “just and equitable” having regard to the facts of the case.

In the case of Babray the Federal Circuit Court dismissed the Husband’s Application for property division following a relationship/marriage of approximately 6 years and where there was a child of the marriage.

The Background

The Husband sought 30% of the overall pool of property available for division between the Husband and Wife.  He did not receive any property at all. 

In this case the facts were that:

• At the time cohabitation commenced the Husband was going through a property dispute with his former de facto partner and borrowed $90,000 from his future wife’s parents to settle his property dispute with his former de facto partner.
• The Wife owned the house in which they lived before she met him.  The Wife’s property had been kept strictly separate during the course of the relationship and marriage.
• The Husband used the sale proceeds of a property he owned to purchase a car which cost more than he received from the sale of his property.  He borrowed funds again from his future wife’s parents.
• For the whole of 6 year relationship the Husband only worked for 3 years and was unemployed for the other 3 years.
• The Husband had done very little to improve the wife’s property. 
• The Wife effectively paid the whole of the living expenses for the family.
• The Federal Circuit Court found that there had not been a intermingling of finances between the Husband and Wife. 

The Outcome

In the circumstances the Federal Circuit Court was satisfied that it would be just and equitable for there to be no property division and this arose from the Husband’s failure to make any contributions. 

It is therefore not always certain that there will be a positive outcome in the sense of a guaranteed property settlement.  This is more so when there is a short marriage or de facto relationship.

If you are in circumstances that you have or propose to end your marriage or de facto relationship or are proposing to enter into a financial/property settlement or have property/financial settlement proceedings or are about to commence proceedings, please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek timely advice.

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