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Contributions not weighed as heavily as sought by Wife

Contributions not weighed as heavily as sought by Wife

  1. The pool is in excess of $2 million. The difference between what the wife contends after a marriage of 27 years that she receive and the husband receive is a difference of 56% around one million dollars in her favour.

The issues for determination

  1. Ascertaining the value of the matrimonial pool for division;
  2. Whether the wife is entitled to a greater contribution-based entitlement than the husband for her past contributions;
  1. Secondly, has the wife has made a superior financial contributions to the parties’ assets post-separation;
  1. Should the wife’s percentage entitlement be further adjusted upwards due to her needs in the future under section 75(2)[2].
  1. The wife’s case in a nutshell is she made a superior initial contributiosn to the acquisition of the matrimonial property due to a sale by her of a property she part owned with her mother in (omitted) in 1996. That this sale netted $55,000 and was the deposit for the purchase former matrimonial home in 1996.
  2. That due to the husband’s work and lifestyle choices, she made the overwhelming contributions as parent and homemaker for the parties’ one daughter, Ms K, now aged 23 and living in (omitted). That this role was made all the harder due to some serious behavioural and mental health issues Ms K suffered from at least 2009 to 2012 and the wife’s significant physical impairment from the effects of meningococcal disease which she contracted in late 2006.
  3. In addition that she worked for a number of years during the marriage and unlike the husband applied all her income to the assets and family.
  4. My concern for the wife’s case and the position she took is that it is totally one sided. In focusing only on her needs and contributions she has significantly minimised the husband’s contributions to the current matrimonial assets and as parent and homemaker. This is how I must approach the matter, assesses both parties’ contributions and needs.

What is the result of this decision for the parties

  1. The net available liquid assets are $1,953,838. A payment to the husband of 40% is $781,535 less the assets in his name which total $78,420. The wife will be required to pay him the sum of $703,115 if she wishes to retain the former matrimonial home. He would also have his superannuation of $194, 000 which he can access immediately.
  2. The wife would have assets then of $1,172,303 and her superannuation of $84,000 which she can access immediately.
  3. There is nothing in the Family Law Act 1975 that says the Court must ensure that one party must live in the matrimonial home. If at all possible, the Court will make orders to facilitate this occurring but it must be feasible, just and equitable and not at the expense of the other party.
  4. My task is to make an order that is in all the circumstances just and equitable, having regard to the parties’ contribution-based entitlements in the past and their needs into the future. I have assessed the wife’s future needs to be 10% per cent greater than the husband’s. That is an allowance approaching $200,000 to the wife in liquid assets for her 75(2)[7] factors over and above the husband resulting in a figure approaching $400,000 or so difference in the monies and assets each will receive excluding superannuation.

Are these orders just and equitable in all the circumstances?

  1. I find these orders are just and equitable in the circumstances. They take account of all of the parties’ contributions to their assets over their long marriage, including post separation, their capacity to provide for themselves into the future and take account of the difference in superannuation each will retain and I will so order.
  2. My real concern for the wife is this: Her own evidence indicates that the home she has been living in for 17 years is totally unsuitable for her needs.
  3. The wife does not have an appropriate kitchen with low bench tops, a dishwasher, appropriate cooking facilities, a suitable bath room for a wheelchair. The wife has a garden to maintain and the home is in need of substantial renovation and repair.
  4. Even if the wife did not have to pay the husband any money and retained the home, the cost to bring the home up to a level that suits her needs and then maintain the home may result in her being unable to hold onto it.
  5. Her overwhelming desire to retain this property has caused her to investigate at most concerning ways to keep it. The wife looked at obtaining a reverse mortgage to pay out the husband, her legal fees and to modify the home which she assesses will cost some $100,000. The total she amount she looked at borrowing was $650,000. This was all predicated on my agreeing with her that her husband was entitled to a mere 18% of the value of the home and in total around 22% of the matrimonial assets.
  6. Even if I had agreed with her position, I am concerned that her own case and evidence produced is inconsistent with the outcome she seeks to achieve. The outcome she seeks to achieve may not be in her best interests at the end of the day.
  7. The wife does require an appropriate home with appropriate bathroom, kitchen facilities, ramps, easy access, little to worry about, secure and safe. The wife says she has an overwhelming psychological/emotional need which impacts upon her health to remain in the Property A area. That may be the case, however her need does not outweigh the entitlement the husband has to a proper distribution of matrimonial assets acquired over a lengthy marriage of 27 years.
  8. In any event, the wife receiving 60% of the assets does not mean she cannot live in the Property A area. The wife has not explored the possibilities that abound for a cashed up single woman with perhaps 1 million in cash, after paying her extraordinary legal fees of $224,000, has in obtaining suitable accommodation.
  9. The husband agreed to give the wife time to pay him out if she so chooses, otherwise, the home is to be sold. I asked the parties to agree upon a timetable for sale of the home as I accept the wife’s difficulties in physically and emotionally removing herself from the property and in having the property on the market ready for sale.
  10. The parties have agreed as follows: that the husband will attend the property at Property A to collect his items between 10 and 2 pm on 9 October 2017 and I make orders that the husband is entitled to collect the items set out in annexure A to his amended application.
  11. Secondly, the Property A property is to be listed for sale by auction if recommended by the listing agent on the first Saturday in May 2018 or as agreed in writing. This gives the wife some six months to pay out the husband and/or organise herself to move from the property. This is not the conduct of a careless husband.
  12. If the agreed agent does not recommend an auction, the property is to be listed for sale by private treaty on or before 1 May 2018.
  13. That that the husband will remove the balance of his items in annexure A on a date nominated by him between exchange and settlement, but no less than seven days prior to settlement.
  14. The parties accept the recommendations of the agent as to the works or other actions necessary to repair the property for sale up to a maximum of $10,000 and shall equally bear the costs of the works and actions, provided that if one party pays all or part of the costs, the other party will reimburse their share of the costs from their entitlement to the proceeds of sale.
  15. The wife will pay, as and when they fall due, the mortgage on the Property A property, the portfolio loan on the Property A property and the rates and insurance for the property pending settlement or sale.
  16. I will order that that from the net proceeds of sale after payment of sale costs, discharge of the current mortgage over the property, the wife is to receive 60% of the net proceeds of sale less the amount of $50,900, which is $44,900 for the (country omitted) Bank account and $6,000 for her furniture, and the husband the balance.

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