before deciding how the assets of a divorced husband and wife should be distributed, the family court has followed 4 steps since 2003
All assets and liabilities have to be identified, including superannuation entitlements, assets held by each person, money held in trusts, in a partnership and in companies.
Highlighting what contributions each partner made to the improvement or maintenance of any asset, not only financial contributions, but non-financial contributions and contributions as a homemaker and parent.
The Court makes the decision if any adjustment is needed for the future requirements of each party, including care of children, inequality in ability to earn, age, health and the current availability of financial resources.
The Court’s role is to ensure that the asset distribution is fair to both parties.
A party may claim that a specific financial contribution should entitle them to a bigger share of the assets. A decision regarding this will be determined by the Court. A special contribution that added to the financial pool in the marriage could be an inheritance, a successful business decision or because one of the parties had gained a particular specialist job that had meant that the financial contribution to the marriage had been significant.
There was a recent case in 2013, concerning a decision made by a full hearing of the Family Court where the husband had managed to reap significant gains through his research by investing in a superannuation fund. The amount invested started at $540,000 in 2008 and by 2012 had reached $1,850,000. The trial judge decided that 2/3 should be given to the husband and 1/3 to the wife. The wife appealed to the Family Court, which decided at a hearing that disproportionately dividing assets could not be justified.
In this instance, despite the fact that the husband added a significant amount to their financial pool, this didn’t make it an asset that would solely benefit him if the marriage failed, as in this case it did. In other words, no one contribution to a couple’s asset pool should be apportioned more weight. This ‘Doctrine of Special Contribution’ is more likely to affect separating parties who possess a high value asset pool, which one of them believes is due to their ‘special contribution’ having reaped financial benefits.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.