BURKE & BURKE

In the matter of *Burke & Burke*, the Family Court of Australia considered a property settlement dispute between a husband and wife following a marriage of over 20 years. Both parties had re-partnered. The central dispute concerned the division of assets accumulated during the marriage, including a business, and the treatment of certain assets disposed of post-separation and a property in which the husband held a future interest.

The court was required to determine whether the property settlement was just and equitable, considering the contributions of each party and relevant section 75(2) factors. Specifically, the court had to assess whether the husband's initial contributions to the accumulation of the asset pool warranted an adjustment in his favour. Furthermore, the court needed to decide whether the husband's post-separation sale of vehicles, at less than market value and despite the wife's objections, constituted a transaction to defeat claims, and if so, what adjustment should be made. Finally, the court had to determine how to treat a property in which the husband held a life interest, which neither party had contributed to, but which the wife sought to include in the divisible asset pool.

Macmillan J found that the husband's significant initial contributions to the marriage were a relevant factor justifying an adjustment in his favour. Regarding the sale of vehicles, the court was not satisfied on the balance of probabilities that these transactions were a sham or that the husband acted negligently or recklessly with the aim of reducing the asset pool's value. While acknowledging the sales were below market value and against the wife's objections, the court determined no further adjustment was warranted on this ground, but the sale proceeds would be considered as a section 75(2) factor. The property in which the husband held a life interest, to which neither party had contributed, was treated as a separate pool of property and taken into account as a section 75(2) factor in favour of the husband.

Ultimately, the court ordered an overall division of 52% in favour of the husband and 48% in favour of the wife, reflecting the adjustments made for initial contributions and section 75(2) factors.