In a family law property settlement, a short marriage is regarded as any marriage of 5 years or less.
In a matrimonial property settlement, an assessment is made whether it is just and equitable for any order to be made in the property settlement under section 79(2) of the Family Law Act 1975 ("the Act"). The parties contributions are considered under section 79(4)(a)-(c) of the Act. The parties' future needs are considered under section 75(2) of the Act.
Section 79(2) states:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4)(a)-(c) states:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
Section 75(2) states:
The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Family Law Property Settlement Contributions in Short Marriages
In Stanford v Stanford (2012) FLC 93-518 at 51, it was stated, "It may readily be assumed that the length of the parties' marriage directly affected the extent of the contributions..."
This suggests that the longer the parties are in a marriage the more likely they are to contribute, both financially and non-financially, to the welfare of the family, to the acquisition, conservation or improvement of any property of the marriage and any children of the marriage.
In a short marriage, where the parties bring in property, assets and like contributions these are considered under section 79(4). In a short marriage, these contributions are given particular attention as they are more significant in a short marriage compared to the range of contributions that are typically accumulated in longer marriages.
Longer marriages see a broader range of contributions including non-financial contributions such as housework, looking after the spouse party, where a spouse party continues education at the expense of income while the other works and caring responsibilities including for children.
Financial contributions in longer marriages typically include income used for the benefit of the parties of the marriage, the acquisition, conservation or improvement of property during the marriage, inheritances, win-falls and appreciation of assets.
The Case of G & G [2006] FacCA 877
The case of G & G [2006] FacCA 877, was an appeal brought by the husband from primary proceedings where an order was made for the wife to receive 16% of the asset pool and the husband 84% of the asset pool, heard before the Honourable Justice Warnick.
The Full Court of the Family Court of Australia allowed the husband's appeal, and the matter was remitted for rehearing.
At the time of the trial, the husband was 71 years of age, and the wife was 62.
There were no children of the marriage.
The parties married in December 2001 and separated in May 2004. The wife contended that cohabitation commenced in July 2000 being 3 years and 10 months of cohabitation, while the husband contended 2001, being at most 3 years and 4 months of cohabitation.
The wife sought an order for 35% of the pool, and the husband an order for 94% of the pool. In the primary proceeding, an order was made for the wife to receive 16% of the asset pool and the husband 84%. This decision was overturned, and the matter was remitted for rehearing on a number of grounds.
Contributions
At the commencement of cohabitation, the husband contributed $423,300 being then 96.5% of the asset pool and the wife contributed 3.5% of the asset pool to the marriage. The husband brought into the marriage his house which was described in the case as the "major asset" of the asset pool worth $582,000.
The primary judge found that during the primary trial the contributions made during the relationship were equal. At the same time, the primary judge made an adjustment in favour of the wife of 6.5% of the asset pool for her contributions.
It was grounds for the appeal that there was no basis and no reasoning to make an adjustment of 6.5% to the wife where the parties' contributions during the marriage were considered to be equal.
While the appeal court considered that a percentage assessment of the initial contributions does not need to be expressed as that percentage even if all other contributions are equal as was found in Pierce and Pierce (1999) FLC 92-644, however, the court should consider the weight that should be given to the initial contribution including how it was used.
In this case, the husband contributed the house to the marriage which provided the parties with somewhere to live.
The appeal court found the 6.5% adjustment to the wife for her contributions to be 3 times her initial contribution and to be excessive and unexplained.
Future Needs
During the primary proceedings, the primary judge considered the parties' future needs.
The primary judge determined that the parties were at the end of their working lives.
The wife's medical issues inhibited her from working for perhaps the remaining 5 years until she reached 65.
The primary judge made an adjustment to the wife of 4% of the asset pool for her future needs.
The only reasoning provided by the primary judge for an adjustment to the wife was due to the husband's violent, intimidating and unreasonable behaviour. The appeal court was unable to discern otherwise why an adjustment was made in the wife's favour.
An adjustment for family violence factors that affected contributions would not normally be made under section 75 unless it was a 75(2)(o), which was not mentioned.
Further to this, an adjustment was already made to the wife under her contributions due to a finding that the husband was violent during the relationship, which made the wife's contributions more arduous.
The appeal court found that the adjustment made to the wife of 4% for her future needs was excessive and without explanation and otherwise tainted by error due to the family violence considerations where an adjustment had already been made under contributions.
The matter was remitted for rehearing.