Williams & Oamra [2020] FCWA 109
The Issue
The main issue in this case was the competing positions of the husband and the wife. The wife was arguing that no division of their assets occur (i.e. they each keep what they currently had in their own names); whereas the husband was seeking an order that the wife transfer assets to him.
To put it into dollars terms, the husband’s asset pool totalled approximately $2.1 million whilst the wife had a net worth of up to $6.7 million. So, the difference between their competing positions was close to $2million dollars!
The Law
The Court had to consider whether it was just and equitable to make any order to alter property interests of the separated couple under s 79(2) of Family Law Act 1975 (Cth) and if so, what kind of adjustment would be appropriate based on the facts of the case.
The Facts
Court proceedings were first commenced in November 2017 by the husband just days after separation.
The Court described the parties’ relationship as “at best unusual and at worst openly hostile”.
The parties were married and lived together for 18 years. They had four children together aged 18, 16, 14 and 12 at the time of the final hearing.
Both the wife and husband owned property coming into the relationship. The wife’s property pool was significantly higher in value.
The parties had never owned property together or in joint names. They never had joint bank accounts and always structured their finances to ensure they contributed equally to expenses.
The wife gave evidence that the parties “deliberately and meticulously kept their finances separate” and “both agreed to keep their properties, investments and finances completely separate”.
The wife also argued that her contributions as parent and homemaker were virtually to the exclusion of the husband, which the court rejected.
In early 2007 the husband donated an organ to one of their children who had a life-threatening condition.
At the time proceedings commenced, the husband was unemployed after being made redundant from his role as an accountant working for the same company for over 30 years. The wife was employed as a business analyst with a salary of approximately $270,000 per annum.
The husband’s asset pool totalled approximately $2.1 million whilst the wife had a net worth of up to $6.7 million.
The Outcome
The Court ruled that there was not a complete separation of financial matters. The wife’s submission was rejected on the grounds that it was not a mutual decision by both parties regarding keeping their finances entirely separate.
There was a property settlement order made dividing the property interests with 45% of the total pool going to the husband and 55% in favour of the wife. This saw him receive a sum of $1,825,830 from the wife.
The Judge noted the following distinguishing elements of the case:
- the organisation of one’s personal expenditure;
- remuneration throughout marriage;
- family contributions;
- capital growth in real estate;
- financial and non-financial contributions; and
- homemaker/parent role.
The wife actually then appealed the decision made by the Judge. The appeal was subsequently dismissed with a costs order made. This meant the wife had to pay the husband’s legal costs of the appeal totalling $19,635.
The Cost
Not including the appeal, the wife incurred legal costs of approximately $170,000 and the husband incurred approximately $230,000 for his legal costs.
Takeaway
Trying to keep your financial matters separate from your partner, husband, or wife, is a very complex matter and it is just one of many factors that a Court will consider when deciding if or how to alter property interests of separated couples.
It is important if you are intending to separate your financial matters from your significant other that you obtain legal advice. A family lawyer will assist you to cover what options or steps you may have to take to retain separate financial matters or provide you with advice regarding existing financial matters.
Would You Like Further Information?
For further information, please contact us today or book an appointment online.
By Tegan Martens
Director & Principal Lawyer
Martens Legal
Disclaimer:
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based on your particular circumstances.
