Don't Take My Assets
Family Law: 03 March 2020
In Chan and Chih the Full Court of the Family Court overturned the trial judge's decision to give the wife a further 5% adjustment of an asset pool because she had the sole care of two dependent children.
The Full Court said that as the Wife had by far the greater assets and despite her earning less than half what the Husband did, the further adjustment wasn't warranted.
The Full Court's decision was handed down on 14 February 2020.
The Family Law Act 1975 section 75(2) requires a court, once it has determined the parties' contributions to the acquisition, conservation and preservation of their assets, to consider whether the additional matters identified in the sub-section warrant a further adjustment of the asset pool in one party's favour.
In this case, the Court considered the following:
- Age - the husband was 50 years old and the wife 47 years old.
- Health - both enjoyed good health.
- Employment - the husband earnt $1,330 per week and the wife earnt $600 per week.
- Future income - the wife was to receive further income from her mother, although cultural issues impacted her ability to realise the full income stream.
- Limitation on the Wife being able to realise in the immediate future a major asset within the asset pool. The limitation centred on the Wife's mother living in this asset and the Court finding that she was bound not to sell the asset while this remained the case.
- Care of the children - the wife had the sole care of the two dependent children.
- Child support - the husband provided support to the wife for the care of the children of $210 per week.
- Standard of living - both parties post-separation enjoyed a reasonable standard of living.
- Overall asset position - the court found the asset pool was approximately $4,000,000 with the respective contribution entitlements of the parties being; 69% the wife, and 31% the husband.
The court said that the wife's responsibility for the care of the two children of the marriage was the significant Section 75(2) factor which mitigated towards an adjustment in her favour and more so, because the youngest child was estranged from the husband. However, the wife's far greater assets offset this factor and there was no basis for an adjustment pursuant to section 75(2).
So, if you are being asked to top up the other party's contribution entitlement for the type of factors identified above, you need our legal assistance.
Most blokes get wacked by this adjustment and just accept what they are told. This is a complex area. It has nuances. We can help. And don't forget to read my note on Contribution Entitlements. It is relevant to the starting point of the Court's consideration of how assets are divided.