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Contributions and Adjustments in Property Cases - When will the Court Help Someone who is Disadvantaged?

12/04/2021

The concept that when a husband and wife separate or a de facto relationship ends all their property will be divided between them “down the middle” or “50/50” is not how family law in Australia operates.  An equal division of property can be agreed between the husband and the wife or de facto partners and documented by approval by the Family Court of Australia or Federal Circuit Court of Consent Orders or in a Binding Financial Agreement.  Sometimes there are divisions of property “down the middle” but most often, there will be a division that is not an equal split.  The Family Court/Federal Circuit Court will take into account what contributions were made by each party and can make adjustments. 

Contributions

If the parties cannot agree the Family Court/Federal Circuit Court may be asked to decide what division of property should be made.  The Court will look at the contributions made by each of the parties to the acquisition, maintenance and improvement of matrimonial/de facto property and the Court has discretion in relation to how a property division should be structured.  The Court will make its decisions on the basis of evidence and not simply because one party says this should be the outcome.  The careful preparation of a case for property division is the basis upon which a party can have the best opportunity to achieve an outcome in their favour.

Adjustments 

The Court will take into account certain factors that are set out in Section 75(2) of the Family Law Act 1975.  The Court can in its discretion, make a more generous division in favour of one party if the Family Court/Federal Circuit Court of Australia thinks that it is appropriate so as to achieve an outcome that is just and equitable. 

When Will the Court Make an Adjustment in Favour of One of the Parties

Section 75(2) requires the Family Court/Federal Circuit Court to look at (among other factors):

(a)      The age and state of health of each party; and

(b)      The income, property and financial resources of each party and the physical and mental capacity of each party for appropriate gainful employment.

Working to Achieve a Positive Outcome – Case Plan and Evidence

Watson & Watson Lawyers recently obtained an outcome for a client who was in a difficult and disadvantaged position.  Watson & Watson Lawyers acted for the husband and the position being taken by his wife that he had not contributed adequately throughout the marriage and that he should receive nothing.  The matter was heard in the Family Court of Australia and the final decision made by the Family Court was that the husband received in excess of 50% of the property pool.  The Family Court of Australia found that he did make contributions and also that he needed an adjustment by reason of certain factors that counted in his favour in the overall outcome that the Court had to deliver.  The outcome for the wife was that she received much less than she had anticipated.

Background

  • Both parties had previously been married and divorced and both were working in the creative arts industry. 
  • For reasons of convenience throughout the marriage, property had been purchased in the wife’s sole name and at the time of the hearing, the husband did not have any property registered in his own name.
  • The wife’s position at final hearing was that the husband had not really contributed throughout the marriage of 10 years and should therefore receive virtually nothing.
  • The husband had during the course of the marriage suffered from depression and acquired a mental disability that required ongoing medical treatment.  The case prepared for the husband was that by reason of his disabilities, he required a significant adjustment in his favour. 

Why did the Court adjust in the husband’s favour?

The Family Court of Australia had before it, evidence that allowed it to find that there was a disparity between the husband and wife as to age, state of health and also as to their capacity for gainful employment.  Prior to the Hearing Watson & Watson Lawyers:

  1. Subpoenaed medical records and other financial records of the husband. The Court had the medical records before it at Hearing.
  2. A long and detailed expert medical report was obtained from the husband’s treating Medical Practitioner.  That report set out precise details of the husband’s state of health (both physical and mental health). 
  3. The report detailed the husband’s capacity and difficulties associated with him obtaining future gainful employment. 
  4. There was evidence available that the husband would incur significant accommodation costs into the future. 

In light of the evidence that was before the Family Court of Australia, the Court was persuaded to make a division of property which took into account the husband’s contributions but also significantly, adjusted the outcome in the husband’s favour to take into account his health issues and lack of capacity for future gainful employment.

At Watson & Watson Lawyers our highly experienced family lawyers can assist you in relation to property/financial settlement whether you are proposing to separate or are separated.  If you need assistance in relation to property/financial settlement, divorce or children contact issues, please contact Richard Watson Senior Family Law Solicitor or Shereen Da Gloria her Personal Assistant to discuss your matter as seeking the appropriate advice in a timely manner is important.

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

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