Property settlements require family courts to determine the contributions that the husband and wife made to the marriage.

The decision in the case of F and F [2004] FCWA 88, issued by a judge of the Family Court of Western Australia, illustrates the application of that principle, as well as the factors considered in making an award of spousal maintenance.

Facts of the case

After living together for a short time, a man and woman married and had a child. Less than three years later, they separated. During the marriage, the husband earned income outside the home and the wife provided childcare and homemaker services inside the home.

The husband sold a home that he owned before the marriage and used the proceeds (and the proceeds of a mortgage loan) to purchase, in his own name, the home in which the couple resided. He also brought superannuation funds into the marriage. The wife had a car and a small superannuation fund. There was no serious dispute about the value of those assets. The judge made findings about the value of other assets.

The judge’s findings resulted in an asset pool of about $200,000. The wife’s assets were about $14,000 and the rest belonged to the husband. The question before the court was how to divide the asset pool in a property settlement.

The wife asked the court to assess her contribution to the marriage at 40 percent. She wanted to keep her assets and receive a payment of $70,000 from her husband. She also asked for an award of spousal maintenance. The husband argued that his contribution should be assessed at 90 percent. He proposed to pay the wife a $20,000 property settlement and no spousal maintenance.

Legal principles guiding the court’s decision

Section 79(4) of the Family Law Act requires the court in property settlement proceedings to consider the contributions made by each party as well as a number of other factors. The court relied upon precedent that addresses situations in which one party makes a substantially greater contribution to the marriage than the other.

Despite language in some decisions that cautions against “eroding” the initial contribution, a larger initial contribution will be entitled to less weight when, over the course of a long marriage, both parties have made substantial contributions (both economic and noneconomic) to the marriage. That is particularly true when the initial contribution has been used for a joint purpose (the joint purchase of a marital home, for instance).

The factors governing spousal maintenance are set forth in section 75(2) of the Family Law Act. They include age, health, income, property ownership, child support obligations, and a number of other factors.

The court’s application of the legal principles

The judge determined that the husband’s initial contribution was entitled to great weight in a marriage of such a short duration. The husband also made a larger financial contribution during the course of the marriage. The wife, on the other hand, made a larger contribution to the noneconomic welfare of the family in her role as homemaker and parent.

The judge concluded that the parties’ entitlements based on contributions should be 85 percent for the husband and 15 percent for the wife, making the wife’s share of the property pool about $30,000.

The judge then considered whether to adjust that award in consideration of the wife’s need for maintenance. Examining the factors in section 75(2), the judge noted that the husband’s earning capacity was larger than the wife’s and that it would take the wife several years to increase her own earning capacity.

Although the husband was making payments for the support of their child and had been awarded significant contact with the child, the child lived with the wife. The husband had greater financial security given his significantly larger superannuation fund, although that fact was partially offset by the consideration of that asset when determining the parties’ contribution entitlements.

Balancing all of those factors, the judge increased the wife’s share of the property pool to $50,000, requiring the husband to pay her $36,000. As a separate award of spousal maintenance, the judge ordered the husband to make a lump sum payment to the wife of an additional $5,000.

This eBook provides an introduction to the legal concepts that govern property settlements and spousal maintenance.