Pursuant to section 79 of the Family Law Act, the Court has the power to alter property interest following the breakdown of a relationship for married couples.
The matter of Stanford (2012) provided that in property law cases, the Court is to consider the following steps:
Identify and value the property pool. Items that can form part of the matrimonial pool include but are not limited to real estate, savings, shares, superannuation, a mortgage and credit card debts;
Identify and assess the parties’ respective contributions during the marriage, as well as post-separation, and depending on the circumstances, contributions made prior to the marriage;
Assess if the parties have any future needs pursuant to section 75(2) of the Family Law Act such as care of a child under 18 years and the extent of a party’s medical condition;
Determine what orders are just and equitable in the circumstances. When analysing and assessing the weight to be given to a party’s contributions to the relationship, the Court can adopt one of the following approaches:
a global approach to property distribution whereby the parties’ assets are considered in one big ‘global’ property pool and the division is based on the parties’ respective contributions to the overall pool of assets; an asset-by-asset approach whereby the party’s respective contributions and interest in each individual asset is considered; and a hybrid of both a global approach and an asset-by-asset approach whereby part of the asset pool will be assessed adopting a global approach, and certain assets using an asset-by-asset.
It was held in the matter of Norbis (1986) that in the majority of cases, the Court will adopt a global approach and in some cases, an asset-by-asset approach will be adopted.
When assessing the parties’ respective contributions, section 79(4) of the Act requires the Court to assess the parties financial and non-financial contributions. Section 79(4)(b) and (c ) provides that in considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
In the marriage of Ferraro (1992), Dawson J stated “as the “correct explanation of the policy which lies behind this aspect of the legislation”, that:
“(T)he contribution of a homemaker or parent is to free the other party to the marriage, usually the husband or father, to devote his time and energy to the pursuit of financial gain and so to make a real and substantial contribution to the acquisition, conservation or improvement of the property where the moneys gained are used for any of those purposes.”
The case of Beales & Zang [2020], referenced a much earlier case in its judgement, being the case of Mallet & Mallet [1984], which stated the following in respect to the assessment of a party’s contribution as a homemaker and parent:
“The Act requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth of the building up of the assets. However, equality will be the measure of other things being equal only if the quality of the respective contributions of the husband and wife, each judge by reference to their own sphere, are equal.
It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. What the Act requires that in considering an order that is just and equitable the court shall take into account any contribution made by a party in the capacity of homemaker or parent. It is a wide discretion which requires a court to assess the value of that contribution in terms of what is just and equitable in all the circumstances of a particular case. There can be no fixed rule of general application.”
Accordingly, the Court does not provide greater weight or emphasis on financial contributions in comparison to indirect financial contributions and contributions made to the welfare of the family. The Family Law Act does not specify the relative weight that the Court should give to each category of contributions, however, the Court must assess each individual case and give the relevant weight to each party’s respective contributions when determining what is fair and just in the circumstances. Therefore, in some cases you may have to pay out less than 50%, in some cases, the property division will be 50/50 and in other cases, you may have to pay out more than 50% of the equity pool to your former Wife.
