When a court makes a decision about property settlement it follows a four step process:
- Ascertaining the property owned by the parties, including the value of the property.
- Assessing the contributions made by each party.
- Examining the future needs of the parties.
- Ensuring that the decision made is just and equitable.
In most long marriages the conclusion is reached that contributions were equal, even though each party may have made different contributions. One party may have made a greater financial contribution. The other party may have made a greater homemaking and parenting contribution.
It is not, however, automatic that the court will conclude that in a long marriage the contributions were equal. It depends on the facts of each case.
In the recent case of Smith & Fields the (simplified) facts were as follows:
- The parties had been married for 29 years.
- There were 3 children.
- The parties started with little. There was now an asset pool in excess of $30 million. The main assets being a construction business and the home.
- The wife's main contribution was homemaking and parenting, although she had an involvement in the business.
- The husband's main contribution was in relation to the business, although he had an involvement in homemaking and parenting.
- At the time of hearing the parties had been separated for about 4 years. All the children had turned 18 prior to separation.
In this property settlement case, the husband argued that the contributions should be assessed as 70/30 in his favour and that his contributions should be regarded as "special" or "out of the ordinary". The wife argued that the contributions should be assessed as equal.
Justice Murphy noted that the Family Law Act does not:
- refer to "special" or "extraordinary" contributions;
- say that financial contributions are more or less important than homemaking and parenting contributions;
- suggest a starting point of equality or otherwise.
He said that "… the court's task is not to assess the evidence with a view to arriving at a finding as to whether a party is possessed of, or has exercised, 'special skill' or 'special talents' with the result that such a finding is productive of a particular finding or range of findings in respect of contribution".
Justice Murphy also said:
"… an analysis of those contributions points to a greater contribution having been made by the husband directly to the business, predominately by reference to the design of the buildings which the business constructs and sells so successfully and to what I will call the stewardship of the company including the plainly clever strategies and planning that have given it success and to the financial and other planning that have led to it doing, relatively speaking, remarkably well in very adverse macro-economic conditions. These are important contributions in which it is, in my view, both appropriate and just to distinguish between the parties to this lengthy union. I consider that disparity to be particularly evident and pronounced in the period post-separation".
He commented that the contributions favour the husband because of "the ingenuity and stewardship which the husband has brought to the business outside of the other contributions made to the business by each of the parties".
Justice Murphy assessed the contributions at 60/40 in favour of the husband.
We understand that the decision from this property settlement case is under appeal.