There is a common misconception that the only relevant factor in a property division is financial contributions. Factors such as the length of a relationship and non-financial contributions can be as equally as important as financial contributions.
Section 79 of the Family Law Act 1975 (Cth) requires the Court to consider the contributions of the parties when considering whether to alter the property interests of the parties to a marriage (section 90SM for de facto relationships). The contributions include:
- The financial contributions made directly or indirectly by or on behalf of a party to the relationship, or a child of the relationship, to the acquisition, conservation or improvement of any property to the relationship.
These are financial contributions made by the parties through income or from third parties such as inheritances, compensation payments, insurance payments or other windfalls.
Depending on the facts of the case, income is not always a determinative factor and can provide little assistance to the Family Law Courts particularly if both parties are working.
The contribution (other than financial) made directly or indirectly by or on behalf of a party to the relationship or a child of the relationship to the acquisition, conservation or improvement of any property to the relationship.
An example of this type of non-financial contribution include providing maintenance or assisting in renovations made to property of the relationship.
If you are primarily responsible for the upkeep of your home, whether it is rented or owned, this can be a relevant factor. It is important to tell your family lawyer the household tasks that you both did during the relationship.
If the parties to a relationship engaged a cleaner there may be some argument that the contributions of the parties were equal unless one party can establish that they undertook more of the responsibility of maintenance of the home.
For properties that are owned by the parties, if there have been renovation works undertaken, there may have been times where the parties have undertaken some of the works themselves. This is a direct non-financial contribution that may have assisted in the increase in the value of the property. If there was assistance by a party’s friend or family member for a discounted or gratuitous fee, this would be an indirect non-financial contribution made to increase the value of the property.
The contribution made by a party to the relationship to the welfare of the family including any contribution made in the capacity of homemaker or parent.
This is primarily centered around the care a party provides as a parent or homemaker.
Although it is not unusual for parties to share in the care of children during the relationship, the Family Law Courts are required to assess whether the care was equal or if one party played more of a primary role in the care of any children.
Children of the relationship include any step-children. If a party to a relationship assisted in the care of a step-child, this is a relevant factor the Court can take into account and considered when assessing the step-parent’s non-financial contributions to the relationship.
If both parties work and/or if they had the assistance of an au pair or nanny, it is possible the Court would deem the parties care of the children as equal. However, when one party works full time and the other does not work full time, it is likely the party who does not work full time will be considered as the primary carer and their contribution to the welfare of the family may be viewed as highly as the party who worked full time.
If you are unsure whether your non-financial contributions will be relevant in your property division, contact Lewis Family Lawyers today to discuss.
