In the recent case of Kaiser & Kaiser [2016] FCCA 1903, the Federal Circuit Court of Australia was called upon to consider the wife’s application for property settlement and spousal maintenance which sought orders that she receive a house valued at approximately $1.5 million, a new car and all of the husband’s modest superannuation of about $39,000.00. The unusual aspect of the matter was that the parties’ property pool, inclusive of superannuation, equated to approximately $50,000.00.

The husband was from a well-known and wealthy family. There was no dispute that, throughout the parties’ 12 year relationship, they had enjoyed a comfortable life and they had been the recipients of the husband’s family’s generosity. The trial Judge summarised the wife’s position as one where she “no doubt expected her standard of living while married to continue after she and the husband separated”.

It was the wife’s belief that the husband had access to significantly greater financial resources than he disclosed although she conceded at trial that she could not prove that the husband owned any other property. The wife conceded she did not either. However, the wife asserted that the husband was in receipt of distributions of money or benefits from various family trusts controlled by his mother.

The evidence of the trusts’ accountants, however, was that the husband (while a beneficiary of the trusts) had never received any distributions from them. The husband’s income was approximately $100,000.00 from employment and he gave evidence that he also received a gift each year from his mother of $50,000.00.

The parties had shared care of their two children.

The husband indicated at trial that he was prepared to pay the wife’s rent and her utility bills for eight years by way of spousal maintenance. He also proposed that the wife receive essentially 100% of the existing assets and superannuation.

Orders were ultimately made in those terms by the trial Judge. In coming to that decision, the trial Judge referred to the fact that there was no evidence before the Court that the husband had assets or financial resources which would give him the capacity to meet the request of the wife and it was “simply not possible” for the Court to make an order to that effect. While the wife had attempted to demonstrate that, through his family, the husband had the financial resources to buy her and the children a home and provide spousal maintenance, the husband’s family were not liable to pay for a house for the wife and children under the Family Law Act.

Overall, it was held that the outcome suggested by the husband would provide secure accommodation for the wife for the next eight years and she would receive virtually all of the available assets and superannuation. It was, in the circumstances, a just and equitable outcome and one which, the trial Judge was satisfied, was generous at law.

While extreme in its facts, the scenario represented in Kaiser & Kaiser is not unusual. Family loans or other financial arrangements, entitlements under wills and interests in discretionary trusts are common examples of where the concept of “family money” can create arguments that one spouse has financial resources or assets on top of the property otherwise available for division, or that the other spouse should receive a greater share of the property pool because of those alleged resources.

Each case is individual in its facts, however, and in some circumstances those interests may be relevant. Unfortunately for Ms Kaiser, she could not overcome the modest pool of property to secure the orders that she sought.