In this case, the parties lived together for 5 years and 9 months and they had a 6-year-old child. When they began cohabitation, the husband completed a property settlement with his former de facto partner by borrowing $90,000 from his new wife’s parents to achieve the settlement.
The parties subsequently married in 2011.
In 2011, the husband’s suburban property was sold, and he received the net sum of $47,750 from the sale. He put that money towards buying a car for $70,000, then borrowing more money from his new wife’s parents to make up the shortfall. When they began living together, the wife owned a property without a mortgage.
The husband worked for 3 years as a labourer, he was then made redundant and he was unemployed for the next 3 years. They subsequently separated… He sought a settlement, being 30% of the wife’s property. She sought an Order that he receive nothing.
The parties had kept their finances separate during their relationship, apart from a joint bank account which was used for living expenses.
The Court found that the husband made only sporadic contributions to the parties’ joint bank account and that he was mostly supported by the wife. The wife worked throughout the relationship, apart from 6 months on maternity leave and she applied the whole of her income to support the relationship and for the maintenance and improvement of her house.
The husband had received a redundancy payment of $8,000 during the relationship but he applied all of that to reduce his debt to the wife’s parents.
The law, in a property case, is that the Court must first consider that it is just and equitable for an Order to be made adjusting property interests. Only if the Court decides that, should an Order be made adjusting property between the parties.
The Court found that the parties deliberately kept their finances separate, especially the wife’s house, where she met all costs and discharged all liabilities in relation to the property. She had brought the property into the relationship. There was no evidence that the parties ever intended that it be treated as their joint asset. The fact that the parties lived in the wife’s property did not mean that it was ever intended to be a joint property. The Trial Judge considered that the husband had made only a minimal contribution to that property.
Further, the Trial Judge found that the husband borrowing large sums of money from his wife’s parents during the relationship confirmed his incapacity to make financial contributions to the relationship.
The Trial Judge decided that the wife effectively paid the whole of the parties’ living expenses for at least half of the period of their relationship. Further, he found that the husband had been significantly supported by the wife, that he was unemployed for the majority of the relationship and that the wife assisted in his re-training and development of new employment skills which assisted in his obtaining his current employment.
In conclusion, the Trial Judge decided that it would not be just or equitable to make a Property Order and that he was not satisfied that the husband had discharged his responsibility of satisfying the Court that such an Order should be made. In the circumstance, no Order was made altering the parties’ existing property interests.
The lesson from this case is that, particularly where there has been a relatively short relationship, where one party has made significantly fewer contributions than the other to the relationship and where the joint asset pool is relatively small, then the Court may refuse to make an Order for a property settlement.
