Can your property division be adjusted because you have a much higher earning capacity than your spouse?

It is not uncommon that one spouse earns more than the other. Often the lower income earner will become the homemaker and take care of the children. The court had to decide whether an adjustment should be made to the property division in such cases. In this case, the husband earned almost 10 times more than the wife had been earning whilst they were married and after they separated. The Court ordered an adjustment.

What did the Court say?

The facts

The couple was married for 30 years and had one adult child. The husband is 58 and the wife is 57 years old. Their joint property pool was $1,5 million. During their marriage, the husband was the main income earner and the wife took care of the children and the home.

The wife had a business for 8 years. The business was valued at $44,749. The amount that she earned from the business per year was in dispute. She claimed it was $35,000 and the husband claimed that she earned $112,000 per year.

The husband earned $320,000 per year. He alleged that the wife spent excessively and that he had to increase the mortgages to consolidate their credit card debts.

The wife’s father gave her $54,000 during the 2 years after they separated to support her living expenses.

The findings

The Court found that even if it was accepted that she had the capacity to earn at that level, the wife never actually earned $112,000 per year from the business. The wife would not have been able to support herself from her income during the marriage or after the separation.

The husband had a significantly higher earning capacity over the 30-year marriage and therefore the wife was entitled to a 12% adjustment in her favour.

The Order

The Court ordered that the wife receive 62% of the property pool and the husband 38%.

Legal advice

Each case is unique. The Court will approach your matter based on your personal circumstances and needs. An experienced family lawyer who deals with these matters on a daily basis will be able to advise you on what to expect should your case end up in court.