Wife Receives 100% of Property Pool at Property Settlement

by Andrew Lind on 1 June, 18

It is not often that a party to a relationship ends up with all (100%) of the relationship property at property settlement after a separation. However, there are instances where this has happened.

In the recent decision of Adair & Adair and Anor [1]the Court ordered that the wife be entitled to 100% of the parties’ property pool. One of the key factors in this case was that the Court found that the domestic violence suffered by the wife throughout the relationship made her contributions as a homemaker and parent more difficult, which resulted in a greater distribution to her. The domestic violence was mostly in the nature of financial abuse.

Mr and Ms Adair had met overseas and were married one month later in 1990. Ms Adair accompanied her husband to Australia shortly following their marriage. They have lived in Australia ever since.

Mr and Ms Adair separated in 2013 when the husband left the home. Both Mr and Ms Adair asked the Court to determine their entitlement at property settlement.

The Court engaged the well-established four (4) step process in determining entitlement of parties at property settlement.

Step 1

Identify the assets, liabilities and financial resources of both parties at the date of agreement or final hearing.

The parties in this case had no significant assets other than three real properties. All three real properties were owned by Mr Adair. The Court found that Ms Adair should have some portion of those assets in circumstances where the parties were married for 28 years and had eight children together.

Step 2

Identify what contributions each party made to the acquisition, conservation and improvement of matrimonial property and/or to the welfare of the family.

Initial Contributions

Mr Adair owned one real property, a video store business and had minimal savings at the commencement of their relationship. Ms Adair had no assets.

Ongoing Contributions

The parties had their first child in 1991. Mr Adair did not assist with the homemaking or parenting, except to occasionally take the children to school. Ms Adair did almost all of the homemaking and parenting of their family of eight children.

Mr Adair did not engage in paid employment from 1990 to 2018. He chose to devote his time to academic interests rather than remunerative interests. The only source of remuneration that the family received from 1990 were Centrelink benefits. Their combined Centrelink benefits were paid to Mr Adair. He controlled their finances, scrutinised the spending of Ms Adair and required her to produce receipts to substantiate her spending. The Court heard not only of a history of controlling behaviour but also of assault of Ms Adair and their three oldest daughters. The Court relied on the case of Kennon & Kennon[2] in which it was said:

Where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.”

The Court found that Ms Adair’s homemaking and parenting contributions were made significantly more arduous than they ought to have been by Mr Adair’s control of their finances and his assault of her and their daughters. An adjustment was made in favour of Ms Adair.

Post-Separation Contributions

Mr Adair paid the rates on all of the real properties after separation. He also contributed a fortnightly payment of $48.00 allocated by Centrelink for the care of the children. He otherwise took no part in the care of the children after separation.

The Court found that Mr Adair’s contributions were assessed to be 30% and Ms Adair’s contributions were assessed to be 70%. The weight given to Ms Adair’s significant non financial contributions to the relationship is evidenced in this assessment.

Step 3

Consider the future needs of each party under section 75(2) of the Family Law Act 1975 (Cth).

The Court found that Ms Adair still has the care of three of their children who are under the age of 18. There is no likelihood that Mr Adair will make any significant contribution to their physical or financial care.

Ms Adair has not been in paid employment since 1990 and she has no qualifications for employment. Mr Adair has refrained from paid employment since 1990 and his prospects of paid employment are slim.

Mr Adair had access to significant funds, eg. proceeds from the sale of various real properties and rental income, which totalled about 28% of the value of the real properties in 2016. He did not use those funds for the benefit of the family.

The Court found that a further adjustment of 30% to Ms Adair was appropriate.

Step 4

Determine whether the proposed order is just and equitable in all the circumstances.

The Court found that it was just and equitable for Ms Adair to receive 100% of the parties’ assets.

While it is not often that a party receives 100% of the assets, you will see it is not impossible in some cases. Please contact us to see if yours is one of them!

This article was written by Emario Welgampola and Brooke Nickerson

[1] [2018] FamCA 239

[2] (1997) FLC 92-757 per Fogarty & Lindenmayer JJ at 82,294 – 84,295

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