Don’t assume that you will have a family law property settlement in your favour- case

Don’t assume that you will have a family law property settlement in your favour- case

Too often it is assumed by a party, and sometimes their lawyer, that going to the Family Court will mean a get rich quick experience. It is mistakenly assumed by many, for example, that living together for 2 years will mean that the person who has nothing  will get 50%. Not so- except in the most extraordinary case.

Similarly, some years ago I had a number of cases where the couple had split up after 5 years of living together. The line was run by the solicitors on the other side, always unsuccessfully, because it was not based in law but was only an ambit claim, that their client, who had come into the relationship with no property, should be entitled to 45%. What rubbish. They ended up with nothing like that- because they were not entitled to anything like 45%. They were never going to get 45%. In the words of Darryl Kerrigan from The Castle: “Tell ’em they’re dreaming.”

I mention this because too often people who go to the Family Law Courts for property settlement have unrealistic expectations of what they are entitled to on property settlement.

An illustration of when a judge decided NOT to make a property settlement was the recent case of Fielding and Nichol. As Chief Judge Thackray stated about the de facto husband:

“His evidence appeared at times to be driven by a sense of entitlement arising out of having devoted 12 years of his life to the relationship.”

The de facto husband and wife had lived together for 12 years. Each came into the relationship with real estate. The de facto husband wanted a 50/50 division of property. The de facto wife said that there should not be any adjustment of property and each should come out of the relationship with the real estate that they came into the relationship with. The de facto husband was 74 and the de facto wife 66. Both were retired, but supplemented their meagre income by the sale of their art. During the course of their relationship they kept their monies largely separate.

The difference between the parties was not big. The de facto husband owned $348,000 of property, and the de facto wife $465,000. In other words, there was an argument of about $60,000.

Chief Judge Thackray refused to make an order for property settlement in favour of the de facto husband.

His Honour held:

  • the husband’s insistence (and the wife’s agreement) throughout the relationship that the parties’ financial affairs should be kept entirely separate, with the intention that each would continue to hold their property separately, in circumstances where each party was mature, intelligent, and not in any way overborne by the other;
  • the fact that the assets were indeed kept entirely separate and the great bulk of them now exist in precisely the same form in which they were held at the commencement of the relationship (save for the fact that the wife now has an encumbrance over her property for which she is solely responsible);
  • the absence of any evidence to suggest the husband refrained from accumulating other assets (assuming he had the capacity to do so), or otherwise changed his position, as a result of having the benefit of using the wife’s home during their relationship and having assumed they would live out their days together;
  • the fact that neither party made any provision for the other to receive an interest in their property in the event of their death (save for the minor issue of the car, which lends support to the conclusion that the parties otherwise intended that the other would never obtain an interest in their assets);
  • the extent of the work done by the husband around the wife’s property was not such as to lead to a conclusion that it would be just and equitable to adjust existing property interests, especially given that the husband (and, for part of the time, his son) lived in the property free of rent; and
  • the ages and state of health of both parties, and the fact that although the wife has property of somewhat greater value than the husband’s, each party nevertheless has a significant asset which could be realised to meet needs that cannot be met from current income (noting that, at present, both are able to meet their necessary expenditure from their own income).

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Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board