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A court looks at
the contributions made by each party to the welfare of the family (Family Law
Act s 79(4)(c). Most importantly, this includes contributions as a homemaker
(cooking, washing, shopping, cleaning, entertaining etc) and, if there are
children, as a parent (having and looking after children, involvement in
children's schooling, recreation and development). These aspects may be
considered both in their own right and in their effect on the earning
capacity and acquisition of assets of the other spouse (e.g. By staying at
home the homemaker spouse has freed the other party to go out and obtain
assets, income and expertise). In many marriages the contributions of the
homemaker are regarded as equal to the contributions of the income earner.
This may not be the case where the marriage was short or the contributions of
one party are large. Contributions may
also be negative if one party wasted the resources of the marriage. For
example, in the case of Kowaliw & Kowaliw (1981) FLC 91-092 the court
considered that the losses incurred because of the reckless negligence,
alcoholism and gambling of one party did not have to be shared by both
parties. How are these contributions really weighed up? Despite the common
negotiating habits of most family lawyers, there is no presumption under the
Family Law Act that for property built up by the joint efforts of the parties
over a long period, a 50/50 division is the starting point. The High Court
has made it clear that no such presumption exists and that the assessment of
a husband and wife's respective contributions must depend entirely on the
facts of each case. The High Court also commented that a wife's contribution
as homemaker and parent should not be given token recognition but should be
considered in a substantial way, a theme which the Full Court of the Family
Court has taken up in cases during the 1990's. In a marriage of at
least 10 years duration, where the parties start financially from
"scratch" and the husband earns wages while the wife is the
homemaker and parent, an equal division of their property would normally be
the outcome. (This is of course prior to any necessary adjustment for future
needs). The result is not so straightforward where one spouse's contribution
is arguably out of the ordinary. Businessmen or entrepreneur husbands have
usually been given recognition by the court for making a greater contribution
to property. |
Attorneys at Law: |
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