D & D

[2006] FamCA 245

[2006] FamCA 245

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. (P) BRF 3310 of 2004

BETWEEN:
  D

Applicant Wife

AND:
  D

Respondent Husband

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE CARMODY

Date of Hearing:                   23 February 2006.                  

Date of Judgment:                11 April 2006.

Appearances:  Mr. Laurie of Counsel, instructed by Walkers Solicitors of PO Box 1514 Toowoomba,  Qld. 4350,  appeared on behalf of the Applicant Wife.

Mr. Cameron of Counsel, instructed by Barry & Nilsson, Solicitors of Level 21, 215 Adelaide Street, Brisbane, Qld. 4000, appeared for the Respondent Husband.

Name of Case:  D and D
File Number:  BRF 3310 of 2004
Date of Hearing:                   23 February 2006
Date of Judgment:               11 April 2006
Coram:  Carmody J

Catchwords:     FAMILY LAW – PROPERTY SETTLEMENT – CONTRIBUTIONS – Relatively short marriage – Responsibility for liabilities –Adding back prepaid legal costs Global or asset by asset approach to contribution assessment – Valuing wife's indirect contribution to increase in business asset value over length of the marriage – Relevance of disappointed expectations of wife due to premature end of the marriage – Adjustment factors including role and function s 75(2)(b), (g) (k).

Legislation:  Family Law Act 1975 (Cth), ss 43, 72, 75(2), 79, 81

Cases considered:                  Aleksovski and Aleksovski (1996) FLC 92-705

Attar v Attar (No 2) [1985] FLR 653

Bremner and Bremner (1995) FLC 92-560

Browne and Green (1999) FLC 92-873

Calverley v Green (1984) 155 CLR 242

C and C [1998] FamCA 143

Clauson and Clauson (1995) FLC 92-595

Collins and Collins (1990) FLC 92-149

Cowan v Cowan [2002] Fam 97

Crawford and Crawford (1979) FLC 90-647

Dickson and Dickson (1999) FLC 92-843

Elias and Elias (1977) FLC 90-267

Evans v Marmont (1997) 41 NSWLR 70

Farmer and Bramley (2000) FLC 93-060

Ferraro and Ferraro (1993) FLC 92-335

Figgins and Figgins (2002) FLC 93-122

Foster v Foster [2003] 2 FLR 299

GBT and BJT [2005] FamCA 683

Hirst and Rosen (1982) FLC 91-230

Jordan v Jordan (1997) FLC 92-736

J and S [2003] FamCA 618

Kennon and Kennon (1997) FLC 92-757

Kowaliw and Kowaliw (1981) FLC 91-092

Lambert v Lambert [2003] 1 Fam Law R 139

Lee Steere and Lee Steere (1985) FLC 91-626

Mallet and Mallet (1984) 156 CLR 605

M and M [1998] FamCA 42

McMahon and McMahon (1995) FLC 92-606

Milankov and Milankov (2002) FLC 93-095

Miller v Miller [2006] 1 FLR 151

Money and Money (1994) FLC 92-485

NHC and RCH (2005) 32 Fam LR 518

Norbis and Norbis (1986) 161 CLR 513

Pierce and Pierce (1999) FLC 92-844

Robertson and Robertson [1983] 4 FLR 387

S v S [1977] Fam 127

Shewring and Shewring (1988) FLC 91-926

Townsend and Townsend (1995) FLC 92-569

Wardman and Hudson (1978) FLC 90-466

Waters and Jurek (1995) FLC 92-635

White v White [2001] 1 AC 596

Zyk and Zyk (1995) FLC 92-644

The parties were married for five years and had a property pool of approximately $3.5 million at the time of trial.  Prior to the marriage, the husband owned and operated a golf course and an indoor sports centre and the wife was a bank teller.  During the marriage, the husband made the total financial contribution during the marriage, but the wife made some indirect financial contributions to the husband’s business through general bookkeeping functions, as well as contributions to the welfare of the family.

At trial, the wife claimed an adjustment of up to 10% for her non-financial contributions.  She asserted that she brought the intangibles of youth and companionship into the marriage, thus increasing the husband’s enjoyment of his twilight years.  The husband, however, argued that the wife should receive a ‘quantum meruit’ type award to compensate her contribution of labour and materials.

Held:

1.   The suggested quantum meruit approach is inconsistent with modern notions of assessing a wife's contribution to a marriage of short duration.

2.   A more appropriate approach involves returning each party to their original positions and to share the wealth accumulated during the marriage between the parties though not necessarily equally.

3.   It is legitimate under paragraph 79(4)(c) to take into account intangible contributions such as emotional investments in a marriage relationship.

4. Economic discrepancies or disadvantages resulting from separation or divorce can properly be allowed for in the adjustment process under s 75(2) even though there is no causal connection with the marriage.

Introduction

1. This is a Part VIII property settlement dispute between the parties to a five year marriage.  The husband is seventy-eight and the wife fifty-two.  There are no children involved.

2. The property pool is in the order of $3.5M. 

3. The wife claims $875,000 or 25 per cent calculated on the basis of a contribution component of 7.5 to 10 per cent and an adjustment of between 10 to 15 per cent for financial disparities and future needs.  She no longer seeks spousal maintenance.

The distributive process

1. The orthodox approach in exercising the adjustive jurisdiction under Section 79 involves four interrelated steps.

2. The first is to identify and value the parties’ net property and financial resources at the date of hearing.

3. The second is to assess the entitlements of each party based on the paragraph 79(4)(a),(b) and (c) contributions. 

4. It is common for judges in short marriage cases to adopt the asset by asset approach involving a determination of the parties’ respective interests in individual items or groups of property rather than assessing their overall contribution to the totality of the assets in the pool, especially where they have scrupulously kept their financial resources and assets separate from each other[1].

   [1]            cf  McMahon (1995) FLC 92-606.

5. However, the Full Court preferred the global approach when re-exercising its discretion in J and S[2] where a childless couple who were married for five years had kept separate financial accounts.  I propose to do the same thing here.  It is convenient and, in my opinion, more appropriate in the circumstances of the case.

   [2]            [2003] Fam CA 618.

6. The third is to decide whether there should be any adjustment to those entitlements by virtue of any other relevant factor such as those in subsec 75(2).

7. The second and third steps do not involve an audit type process in the same way as the preparation of a balance sheet does.  It is more a matter of judgment than computation.

8. The fourth and final step requires the Court to consider the provisional outcome of the first three steps and to make orders which in both structure and substance achieves a just and equitable overall result.  Whether they do or not depends on the real impact in actual money terms not the percentage assessment.

9. The goal is to finally and fairly terminate financial relations between former spouses.

The property pool

1. The husband has accumulated wealth of $3,269,275.   His main financial resource is a profitable golf course business and sports complex at E worth $2.8M.  Other assets include a Toyota 4-wheel drive, savings and a substantial share portfolio. The wife has a house with a mortgage in T, a small car, jewellery, furniture, some savings and superannuation totalling $289,452.  The current balance of her home loan is $87,113 and she also has a credit card debt of $11,978.

The wife’s liabilities

1. Counsel for the husband asks me to ignore nearly half of the wife’s liabilities for distribution purposes because the mortgage rose by $45,000 and the credit card debt by $6,500 between the date of separation and the hearing.  Sole responsibility for the increase he submits should be allotted to the wife.

2. The Court can only make adjustive orders under s 79(1) in relation to the property of the parties, or either of them that exists at the date of trial.[3]  However, previously owned property that no longer exists can be notionally added back to the pool where the value of the available assets has been reduced either by premature distribution[4] or in one or other of the circumstances outlined by Baker J in Kowaliw[5].  A third party debt which was not intended by the borrowing party to add to the wealth or benefit the welfare of the family may be treated as being the sole responsibility of the debtor party rather than a joint liability of the parties under this principle.

   [3]            Milankov (2002) FLC 93-095.

   [4]As in the case of  Townsend (1995) FLC 92-569 where the husband was required to account for the proceeds of the post-separation sale of a taxi licence.

   [5] (1981) FLC 91-092 at 76,644.

3. Whether an item of expenditure should be notionally added back (or liability disallowed) depends on what it was spent on or incurred for.  Disbursements beyond what was needed for reasonable and necessary living expenses can (and should) be brought back in.    However, there is no precedent for adding back moneys expended or liabilities incurred to meet the reasonable cost of post-separation living.[6]

   [6]See M and M [1998] FamCA 42; C and C [1998] FamCA 143; Chorn and Hopkins (2004) FLC 93-204 at par [24].

4. The relevant evidence is that the wife gave up her job at a bank to marry the husband.  He admittedly paid all of her living costs during the marriage. On separation, the wife left the former matrimonial home (apparently without much in the way of furniture and household effects) and moved into the house she bought in T in 2001.  The mortgage debt at that stage was approximately $45,000.  The husband paid $450 a week in spousal maintenance and $109 per month in private health insurance from June 2003 to April 2004.  Apart from $100 a week she receives from her son for board, this was the wife’s only source of income until October 2004 when she obtained her current employment as a part time telephone consultant at a bank.  She had no savings and found it difficult to make ends meet.

5. Her Form 13 filed 9 November 2005 declares a post-separation shortfall between weekly income and expenditure of $217.  She says at par 72 of her Rule 15 affidavit that her credit card bridged the gap.  She also asserts (and I accept) that the mortgage was increased in August 2004 from $45,000 to $90,000 to buy replacement furniture, including a piano, and to discharge her growing personal debts and credit card liability.

6. I am also satisfied that she was forced to sell shares in the S Bank for between $5,000 and $5,500 in January 2003 to help make ends meet.

7. I do not think that in these circumstances, the wife should bear sole responsibility for the post-separation increase in the mortgage and credit card indebtedness.  Both liabilities should be brought to account in ascertaining the net assets of the parties.  In Chorn and Hopkins [7], the Full Court approved the following statement in M and M: [8]

   “42. . . . Neither the Family Law Act nor the case law requires that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial judge.”

   [7] (2004) FLC 93-204 at [42] et seq.

   [8]            [1998] Fam CA 42.

8. The Full Court also endorsed the following statement in C and C: [9]

   “46.“Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule.  The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives.”

   [9]            [1998] Fam CA 143.

9. These remarks apply equally to post separation liabilities and I accept counsel for the wife’s contention that it would be contrary to principle (and to relevant concepts of fairness) to dismiss borrowings which were not reckless, wanton or negligent within the Kowaliw notion of waste or analogous to the Townsend doctrine of premature dispositions.

Prepaid Legal Expenses

1. Both parties have prepaid legal expenses.  The husband has paid his lawyers $40,270.  The wife has paid hers $810.  She contends that the full amount of both sums should be added-back because of the requirement in s 117 that each party bear their own cost of litigating in this jurisdiction.  There is no inflexible rule that prepaid legals be added back to a notional pool.  It is ultimately a matter of judicial discretion.

2. In Chorn and Hopkins, supra,[10] the Full Court relevantly said:

   “56.In determining how to exercise that discretion, regard should be had to the source of the funds.

   57.If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party who has had the benefit of them.

   58.If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties.  Funds generated from assets or businesses to which the other party made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions".

   [10]          at par 42 et seq.

3. I am satisfied that both parties have paid their lawyers from post-separation income: the husband from business earnings and the wife from wages or borrowings.  While the wife made some indirect contribution to the husband’s business assets during the marriage I do not think it was significant enough to justify the proposed add-back, nor do I believe that the policy underlying the general rule in s 117 will be diminished or defeated in this case by not doing so.

4. On my calculations, therefore, the value of the net pool of assets available for distribution between the parties is $3,459,636.

Contribution

1. The next step in the s 79 process is to evaluate the past contribution of the parties, direct and indirect, financial and non-financial, to their accumulated wealth and welfare of the family under paras (a), (b) and (c) of s 79(4). The question to be decided is whether the wife can make out a claim on the basis of any contribution she has made to family property or welfare.

2. The husband developed the golf course with his own hands in 1970.  He converted an aircraft hanger into an indoor sports centre and added a restaurant and golf pro shop in 1990.  When cohabitation commenced in 1998 the husband had property in excess of $2.5M including the golf course, sporting complex and two rental properties. The revenue from these facilities plus rent and other business returns were the sole source of the parties’ income during the marriage generating about $11,000 a month.  The wife, by contrast, had her severance pay from her employment at the bank of $35,000 and her equity in a house at G of $50,000 which, expressed in percentage terms, was 3.15 percent of the initial joint estate.

3. The wife gave up paid employment to marry in 1998.  She had been a bank teller for the previous 10 years with a bank working an average 32-hour week for $22,000 gross per annum.  She turned down the offer of a promotion and transfer to Melbourne and accepted a redundancy package instead.

4. She was almost wholly financially dependent on the husband until separation.

5. She was well provided for and enjoyed a comfortable lifestyle during the marriage.  Most of the parties' married life was spent caravanning around Australia and travelling overseas.  The couple travelled overseas on three separate occasions. On the last of these they travelled business class.  They went to Asia on a cruise for a month in 1998 on their honeymoon.  In 1999 the husband paid all the wife's expenses to travel to Hungary for three weeks to visit her family, and in 2002 they spent three months together in Europe.

6. The husband made the total financial contribution during the marriage to the preservation and conservation of assets.  He estimates that he spent $150,000 for the joint benefit of the parties on travel alone. 

7. The wife admits receiving direct monetary benefits during the marriage totalling $58,865 including $38,000 paid as superannuation, 500 CM shares at a cost of $4,415, a Holden motor vehicle costing $5,000 and jewellery worth $3,450.

8. She was also paid $200 a week from 2001 for living expenses.

9. The wife’s property has increased in real terms by about $100,000 since 1998.  This is due largely to inflation and the superannuation payment received from the husband. Her current assets represent just under six percent after a value of the distributable pool. 

10. She made indirect financial contributions to the business by performing bookwork and general administrative functions for the first two years of marriage.  She did not receive any actual money for this work but the business presumably received a tax benefit by declaring a notional salary of $800 per fortnight for the period.

11. The wife also established and maintained new gardens at the golf course and did the cleaning and cooking for the household, including the husband’s son.

12. The husband is worth about $800,000 more today than he was five years ago thanks largely to inflation but does not want to share this windfall with the wife on the basis of the argument that she has already taken out more than she put into the marriage and is in a much better financial position than she was beforehand.

13. Counsel for the wife counters that the wife is entitled to an extra amount of up to 10 percent or $350,000 for the non-financial contributions she made to this marriage in the five years it lasted.  He submits that the wife’s entitlement under subsec 79(4) arises by virtue of a wider range of economically valuable contributions to the emotional wellbeing and overall welfare of the parties as a couple.  What she brought in were, he explains, the intangibles of youth and companionship and made the husband’s twilight years much more enjoyable than they are likely to have otherwise been. 

14. At the very least, he suggests, the parties should share any increase in value during the relationship.

15. Australia is a separate property regime.  Under the general law the ownership rights of parties are determined by their respective contribution in line with the established legal principles and equitable doctrines discussed by the High Court in Calverley v Green. [11]  In the absence of any evidence or rule to the contrary, legal title is presumed to be held beneficially on trust - resulting, implied or constructive - in proportion to the financial or other recognised contribution made to the purchase, improvement or conservation of the property in question.

    [11] (1984) 155 CLR 242.

16. Marriage itself does not affect the property interests of spouses.  Living together, per se, does not justify significant wealth transfer.

17. However, section 79 of the Family Law Act, 1975 enables a judge exercising matrimonial jurisdiction in property proceedings between former spouses to make "appropriate" orders altering their existing interests in property by transfer or settlement if (and only if) it is "just and equitable" in all the circumstances to do so.

18. The power conferred by s 79(1) carries with it an extremely broad, but not unlimited, discretion, conditioned on the taking into account of the matters specified in subsection 79(4) and, insofar as they are applicable, the policy considerations in sections 43 and 81 of the Family Law Act.[12] However, s 79 does not entitle the court to adopt a "soup kitchen" approach. The reference in sub-section 79(2) to considerations of justice and equity is controlled by the factors in s 79(4).

    [12]          Norbis (1986) 161 CLR 513.

1. There is no authority to equalise the financial strengths of the parties nor, subject to s 75(2)(o), to correct economic anomalies by reference to notions of fault or blame. On the contrary, subsec 79(2) expressly requires the court to stay its hand and refrain from making any order for property division unless the alteration of existing property rights is just and equitable. Sometimes the relevant concepts of justice and equity will favour the status quo.

2. Included in the marriage vows is the promise, reflected in s 72 of the Act, to always maintain the other to the extent of their respective means and needs: cf. Evans v Marmont.[13]  Spouses spend their lives together as a socio-economic unit or  partnership of equals.[14]  They do not combine merely with a view to profit but for their mutual overall benefit.

   [13] (1997) 41 NSWLR 70 at 79 re: de facto relationships.

   [14]          Ferraro (1993) FLC 92-335 at 79,579.

3. Intention, contribution, reliance, compensation and need are all recognised justifications for the power to adjust the property interests of spouses because of the circumstances of the marriage or its breakdown.  As Professor Patrick Parkinson explains[15], reliance issues arise from such factors as sacrifices that (mostly) women make by altering their workforce participation to care for the home and family, on an assumption about the stability and permanence of the relationship (and encompass other related justifications of vulnerability and dependency).  Need as a justification flows from the commitment of lifelong mutual support made by marriage partners.  Along with intention and contribution, this differs from reliance because there does not have to be a causal link between the marriage and the reason for the need.  Compensation is similar to reliance because it responds to the differential impact on the parties of their relationship and involves sharing its economic consequences and compensating for losses associated with contributions made to it which are not recouped under other principles.  Common heads of compensation include lost income and earning capacity, loss of living standard and future financial support. 

   [15]Quantifying the Homemaker Contribution in Family Property Law (2003) 31 Federal Law Rev. 1 at 8.

4. These are all covered by the provisions of s 79(4), especially the matters referred to in pars. (a), (b), (d), (d) and (e).

5. The basic rationale for the power to alter private property interests on separation or divorce in Australia, however, lies in the binding nature of the marital relationship and its hallmark features of "give and take". Marriage in this country is "an institution" involving the union of a man and woman to the exclusion of all others, entered into voluntarily for life: see s 43 of the Family Law Act. It is, first and foremost, a sacred covenant. Couples who marry, unlike those who merely cohabit, solemnly commit to each other in the presence of witnesses, for better or worse, richer or poorer, in sickness and in health until death.

6. Typically, married couples divide roles and responsibilities and reciprocal duties of devotion between themselves.  They perform different but complementary rather than competitive functions, and choose to live in a way that will enable them to attain their common goals, both as individuals and a family, expecting their relationship to last a lifetime: Waters and Jurek [16].

   [16] (1995) FLC 92-635 at 82,379.

7. Each party expects the other to contribute as much as they can in their chosen or allocated sphere.  They do not keep a running record or account of who does what for the overall benefit of the family. What each partner gives or gives up is not assessed in purely monetary terms or to the extent that they have financial consequences. To paraphrase the contemporary American poet,  E. E. Cummings, what is done by one alone is done for the other. The degree of effort counts for more than the actual results achieved. What matters most is whether each of them pulled their weight and shouldered their fair share of the burden. 

8. In Shewring[17], Nygh J emphasised the importance of evaluating the efforts of the parties rather than the results they achieved.  His Honour expressed the opinion that any qualitative assessment of contribution should be based on the principle that each party should make such contribution as can reasonably be expected having regard to the nature of the party's capacity, the ability of each of the parties and expectation of the spouses. 

   [17] (1988) FLC 91-626.

9. The alteration exercise, therefore, involves an overall assessment of the proportionate responsibility of each party for the acquisition, maintenance and improvement of the property which represents the fruits of the totality of their joint efforts in their diverse but equally valuable roles in the marriage partnership[18], quantifying their respective contribution to the accumulated wealth and overall welfare of the family, apportioning the gains and losses they made, compensating them for unmet expectations or lost opportunities and misplaced reliance on the strength of assurances about the permanence and stability of the relationship, and providing for their likely future financial needs.[19]

   [18]          Mallet (1984) 156 CLR 605 per Deane J.

   [19]          Parkinson, P., op.cit., at 10.

10. Economic justice is not a fixed standard.  Every case depends on its own unique facts.  What is important is to somehow give a reasonable value to all the elements that go to making up the entirety of the marriage relationship.[20]  As the Full Court recognised in Ferraro[21] making a crucial comparison between contributions through fundamentally different activities is a difficult undertaking.  So too is trying to objectively assess the value of contributions to the welfare, as distinct from the wealth, of the family.  The former are vulnerable to undisclosed subjective value judgments and are not readily susceptible to measurement in dollar terms.

    [20]          cf. Aleksovski (1996) FLC 92-705 per Kay J (dissenting) at 83,443.

    [21] (1993) FLC 92-335.

11. Care must therefore be taken not to undervalue the indirect and homemaker contribution of a wife in a marriage of short duration.

12. As the Full Court observed in Kennon [22], there are: 

    "…a myriad of matters, large and small, which go to make up that union and differentiate it from more casual transitory relationships.  It means sharing the minutiae of family life, support during good and bad times, care and intimacy . . . It - that is, marriage - is an intimate sharing of mutual but diverse talents for . . . joint benefit".

    [22] (1997) FLC 92-757 at 84-299.

13. Consequently, value is accorded to the emotional as well as the merely physical contributions of the parties to each other.  Weight is given to "the realities of married life" and the different "qualities" which each brought to the marriage.[23]

    [23]          Kennon at 84,299-300 per Fogarty and Lindenmayer JJ.

14. In cases where the waste principles formulated by Baker J in Kowaliw [24] do not apply the effect of the provisions in subsec 79(4) appears to be that spouses should share (not necessarily equally) both the financial gains and losses during their marriage regardless of its duration. [25]

    [24] (1981) FLC 91-092.

    [25]          cf Browne and Green (1999) 92-873

15. Giving all types of contribution equal weight, irrespective of the roles undertaken in making them, will usually - but not always - result in an equal division of the fruits of the joint efforts and investments of the parties during the period of the marriage but there is, of course, no general rule of equality as a starting point nor any presumption that "equity is equality" even in long marriages. [26]   

    [26]          Mallet (1984) 156 CLR 605.

16. The outcome of the appeal in Ferraro suggests that where there is a very large pool of property in the order of millions of dollars (a so called big money case) created by the skill and business acumen of one party, the homemaker contributions of the other will often be recognised by an award approaching 40 percent where the marriage is around 30 years reducing by about one percent for every year short of that.

17. However, neither the tendency to equal division of family assets nor the guidelines in Ferraro will normally apply in marriages of less than seven years.

18. The task of a judge in property cases is to measure and value contribution not time.  Income earned during the marriage is to be treated as being acquired through joint effort regardless of the roles each party played.  Thus, the fruits of the marriage partnership include any income derived from business or wages and the assets acquired as a result.  Similarly, increases in the capital value of businesses and other assets during the course of the marriage will reflect joint (but perhaps unequal) effort and a return on the initial investment through inflation or windfall profit.

19. Property which is not the product (or fruits) of the partnership should be treated as separate property of the one who brought it into the marriage.  It is only the joint property (including separate property) which has been improved or preserved during the marriage by joint efforts or, arguably, good fortune, which should be shared though not necessarily equally between the parties.  The parties should divide the fruits of the marriage partnership according to effort giving equal weight to the breadwinner and homemaker contributions.  However, they should arguably only share in premarital assets to the extent that each has contributed to the maintenance and improvement of them and not otherwise.

20. In Hirst and Rosen[27], Nygh J expressed the view that in marriages of short duration (34 months in that case) the focus should be on the actual financial contributions made directly or indirectly to the acquisition or preservation of assets. 

    [27] (1982) FLC 91-230.

21. The source of this comment was a statement by the Full Court in Wardman and Hudson [28] to the effect that where a marriage is a short one and no question arises of the care and control of children, the question of assessment of the indirect contributions made by the parties becomes less important on the basis that it cannot have the same significance as it does where parties over a long period of time keep house and raise a family.

    [28] (1978) FLC 90-466.

22. Thus, in a marriage of no great length a young childless couple who make roughly equal contributions during the marriage and there are no other s 75(2) factors leading to a different result, will usually see a property order made leaving the bulk of the assets remaining with the party contributing them.

23. There may well be cases where it is appropriate to assess the contributions of the parties by reference to their direct financial contribution or that an order which results in returning to each party that which they contributed directly would be just and equitable.  However, this, in my opinion, is not such a case. [29]

    [29]          cf McMahon (1995) FLC 92-606.

24. Nonetheless, the duration of a marriage is expressly relevant under par (d) of subsec 79(4) but may, of course, be highly significant in assessing contributions too, because, as I noted earlier, the shorter the duration of the marriage the more weight may be given to financial, especially initial capital, contributions and less attached to the domestic role. 

25. The difficulty of reflecting substantially disproportionate financial contributions at the beginning of the marriage in orders directed to the division of the property at the end of the marriage is, as the Full Court recognised in Zyk [30], an acute one.  It is ordinarily just and equitable that the differential be treated as significant but cases, such as    Crawford [31], Money [32] and Bremner [33], emphasise that the disparity may be eroded over time and/or by the contributions of the parties during the course of the marriage.  How and to what extent this is done is a difficult problem and one which is not susceptible to precise analysis.  That is largely because it depends upon a number of variables, such as the initial difference, the use subsequently made of those assets, whether or not they have increased in value, due to the efforts of the parties, or external forces, the length of the marriage, and the size and impact of other contributions made in the intervening period (cf. Pierce [34]).

    [30] (1995) FLC 92-644 at 82,517.

    [31] (1979) FLC 90-647.

    [32] (1994) FLC 92-485.

    [33] (1995) FLC 92-560.

    [34] (1999) FLC 92-844.

26. It is not unusual for the court to attribute diminishing significance to initial contribution of valuable property by one spouse as the period of cohabitation lengthens and, the offsetting effect of other contributions, including the domestic contributions, of the other spouse increases. 

27. The approach of working out the approximate appreciation of the business during the course of the marriage and splitting it in half, according to one respected legal writer, has much to commend it as a simple rule which makes prediction of the outcome reasonably straightforward.  However, treating the whole gain as being the equivalent of community property is not entirely fair to the contributor of the premarital assets.  It means that the entire increase due to inflation is treated as jointly owned and the contributor is given no interest on the capital which he or she brought into the marriage.  Perhaps a fairer result would be to estimate the gain during the marriage and then subtract from that a reasonable rate of interest on capital brought into the marriage calculated as simple interest at regular intervals[35].

    [35]cf.  Parkinson. P, The Diminishing Significance of Initial Contributions to Property  (1999) 13 Australian Family Law Journal 52.

28. However, here the husband submits that the wife should be awarded a sum of money analogous to a quantum meruit award to compensate her contribution of labour and materials.  This approach is said to be consistent with the principles applicable to so-called “short marriages”.  The proposition appears to derive from a statement in John Wade’s text Property Division upon Marriage Breakdown[36] which was last reprinted in 1984 and cites mostly pre 1982 authorities relating to marriages of less than 2 years duration.

    [36]          (1984) CCH Australia Limited at 232

29. The husband contends, in effect, that his former wife has already received more than her due and concedes no more than a five percent (s 75(2)) adjustment or approximately $175,000.  This is about $16,000 less than the value of her retained property.  Another possible (though overly generous) option he says would be to allow her to keep what she has debt-free.  To achieve this result, he would have to discharge her mortgage and credit card liabilities by paying her a lump sum of about $100,000.

30. In Clauson[37] assets brought into a nine year marriage by the husband increased from $700,000 to $1.27 million.  The Full Court accepted the wife’s contention that the net increase should be treated as having been contributed to jointly so that overall the husband contributed 70 percent to her 30 percent (ie $700,000 + $570,000 ÷ 2).

    [37] (1995) FLC 92-595.

31. This pseudo mathematical approach was held to provide a rough and primitive (though no less valid) initial point of reference.

32. In GBT and BJT,[38] the Full Court heard an appeal against a property settlement determination of 87.5 per cent in favour of the husband and 12.5 per cent to the wife, plus a further five percent adjustment pursuant to s 75(2), of a net pool of assets totalling approximately $3,000,000. The marriage lasted six years. Both parties had been married before but neither had any children. At the commencement of the relationship the husband was a partner in an accountancy firm that employed the wife as a secretary. She was 30 at the date of marriage. He was 48. The husband established his own practice shortly after the marriage. The wife worked in the business for three years before retiring. She had re-partnered and was earning a good wage at the time of trial. The husband had income of about $15,000 per month.

    [38] [2005] FamCA 683.

33. Allowing the appeal, Kay, Holden and Warnick JJ, lowered the wife's contribution by 5 per cent and cut the s 75(2) adjustment in half, reducing her overall award from 17.5 to 10 per cent of the pool.

34. In arriving at the conclusion that the original contribution assessment was manifestly excessive, their Honours said at [58] - [60] :

    "58.. . . [the trial judge] found that the husband had clearly made the greater financial and non-financial contributions and although the wife had made the greater contributions as a homemaker that is only of marginal significance . . . "  (emphasis added).

    59.Having regard to such ultimate conclusions, as against the fact that 12.5 per cent of the assessed pool meant a payment to the wife on account of contributions of $395,917, we are of the view that the assessment was manifestly excessive. We consider that on the findings made, an assessment within a narrow band 5 - 7.5 per cent to the wife was the range of discretion.

    60.Taking the view most favourable to the wife and assessing her contributions at 7.5 per cent results in an assessment of 5 per cent less than that nominated by the trial judge. While in circumstances dealing with much more substantial and even contributions by each party, 5 per cent, more or less, than awarded by a trial judge might not render the trial judge's award manifestly insufficient or excessive, here 5 per cent less represents a 40 per cent reduction of the amount awarded."

35. In Kennon, [39] supra, a childless couple cohabited for a period of about five years.  At the time of the trial the husband had net assets of about $8.7M.  He had much the same at commencement.  All the assets which existed at the date of hearing either existed at the time cohabitation began or could be traced to pre-existing assets.  His income was close to $1m per annum.  When the parties began cohabiting, the wife was employed at an income of $45,000 per annum and had property to the value of $49,000.  She worked part time in the husband’s company during the marriage but did not otherwise work for wages except on a casual basis.  At trial, she was employed in a similar occupation to that in 1989 but was earning less.  Her notional assets were assessed at $94,000. 

    [39] (1997) FLC 92-757.

36. The wife claimed an order for between $800,000 and $1.3m in property settlement. The husband’s case was that a proper award was $150,000. The trial judge awarded a total of $400,000 half of which reflected contributions and the other half s 75(2) factors. His Honour concluded that the wife had made no direct financial contributions under paragraph 79(4)(a) and that she had made very limited contribution under paragraph (b). His Honour did not examine in isolation the indirect financial contribution issue under par (b) but accepted that the wife contributed to the husband’s business to a small extent by the contribution of her own knowledge and more significantly by her assistance at social functions. In relation to paragraph (c), his Honour took into account a number of circumstances including that the wife left cohabitation with more assets than she brought into it, a “very substantial benefit which the wife received from the husband in various ways” during the marriage, that during cohabitation she was provided for in a manner that was “more comfortable than anything she had experienced in her adult working life prior to that time”, that the parties had domestic assistance in the home, that the wife could not have expected to accumulate $400,000 during that time if she had not married the husband, and that she had “reaped at least the equal of what she sowed during the five years of cohabitation”. There was no suggestion that during the marriage the wife received any significant property from the husband.

1. His Honour was not satisfied in relation to subsec 75(2) that the duration of the marriage had affected the wife’s earning capacity and made no substantial adjustment under that heading.

2. Both parties challenged this outcome principally on the basis that for different reasons it was outside a reasonable range of discretion. 

3. A majority of the Full Court (Fogarty and Lindenmayer JJ) upheld the wife’s appeal on the ground that the approach taken by the trial judge resulted in a serious undervaluation of the wife’s welfare contributions to the marriage pursuant to s 79(4)(c). Her contribution based entitlement was increased to $700,000 (about eight percent of the property in the pool). Baker J (dissenting) found no appellable error and dismissed the appeal because the original award was within a range where reasonable disagreement was possible, having regard to the husband’s substantial wealth and the fact that the wife made very little by way of financial contribution to the marriage.

4. The majority judges found (at 84,297) that the direct financial contributions during the marriage were overwhelmingly those of the husband.  He was a very wealthy man with a substantial income throughout the marriage.  Property acquired during the marriage was acquired through him.  The only financial contribution made by the wife was her income which was minuscule compared to his.  The learned trial judges’ conclusions as to direct financial contributions were held to be correct.

5. Although the majority would have placed greater weight on the wife’s indirect financial contributions, they were not prepared to conclude that the trial judge’s discretion had miscarried in this respect.

6. Their reservations lay mainly in his Honour’s treatment of the wife’s welfare contributions under par (c).  Their Honours stated:

   “There is no doubt that the wife made a major contribution in this area, doing all that was required of her, given the shape and nature of this marriage.

   . . .

   The important aspect of this case is that the wife contributed fully to the task of wife and homemaker.  The circumstances that the husband may have made almost equivalent contributions does not mean that they cancel each other out but the approach of treating them as virtually cancelling each other out had the effect of leaving the other party’s financial contributions as the only ones to be counted as significant.  This seems to have happened here, leaving the wife’s case apparently largely dependent upon peripheral matters.”

7. Their Honours pointed out that when the parties commenced cohabitation their probable future lifestyle was predictable.  The husband was a wealthy man, it was agreed that they would not have children, they would entertain lavishly for both business and pleasure and the wife may or may not work full time.  The wife did not bring into the marriage property or significant income.  However, she did add “qualities” which appealed to the husband and which both understood were to be her contributions to their married life together.  Her welfare contributions were not diminished by domestic assistance and were made within a known and mutually accepted context.  The offsetting impact of the substantial non-capital benefits which the wife received and retained as a result of the marriage were not regarded as representing an appropriate recognition of her efforts.  What the wife received from the husband during the marriage (the only property being a motor car) was really an issue of standard of living within 75(2)(g) rather than contributions.

8. The standard of living which one party provides to the other is not to be seen as a down payment on a subsequent property settlement.  Moreover, the circumstance that the parties during the marriage lived to a very high standard largely due to the wealth of one of them does not mean that at the end of that period, that circumstance cancels out or largely diminishes the contributions which we expect of the other party and which that person provided.[40]  To approach the matter in such a way is contrary to principle under present thinking.

   [40]          at 84,299.

9. Fogarty and Lindenmayer JJ held [41]:

   “The reality is that the parties lived their married life together. They brought to the marriage qualities which each saw as attractive. Within the s 79 context each party contributed as best they could the qualities which each brought to this marriage. In the husband’s case, it included the quality of being very wealthy. In the wife’s case, the qualities were less tangible. His Honour did not give these aspects the consideration which they deserved.”

   [41]          at 84,300.

10. In Figgins and Figgins [42], the parties cohabited for approximately seven years between 1994 and 2000.  They had one child aged five at the time of hearing.  The wife continued to be the primary parent after separation.  Neither party had any significant asset at commencement.  However, the husband had a net worth of $22,500,000 at trial as a result of an inheritance early in the marriage.  The wife, on the other hand, had liabilities exceeding her assets.

    [42] (2002) FLC 93-122.

11. The trial Judge awarded the wife $600,000 for contribution and $500,000 for s 75(2) factors. The Full Court held the result to be manifestly inadequate and, by a majority, substituted $2.5M, which was slightly more than 10 per cent of the husband's net worth.

12. The Full Court placed heavy reliance on the remarks of Lord Nicholls and Lord Cooke in the recent English decision of White and White. [43] 

    [43][2001] 1 AC 596 Although also a big money case, White differed from Figgins to the extent that it was a much longer marriage, involving greater direct and indirect contributions by the wife and differing legislation.  However, both cases were concerned with avoiding stereotypical assumptions and value laden approaches to the adjustive discretion. 

13. Their Honours said commencing at par 132 [44] :

    "132.        We think that the important concept that can be said to emerge from White is that, in order to test whether a result is fair, or in Australian terms just and equitable, it is important to ask whether the husband and wife are being treated equally.  It states in the clearest terms the modern recognition of equality of the sexes and the need to abandon all forms of discrimination. 

    133.         In the present case we think that the emphasis given by White to gender equality is important in testing the overall result.  We think that the lesson to be learned from White is that it is a major error to approach these cases upon the basis that one arrives at a figure that is thought to satisfy the needs of the wife and give the balance to the husband.

    134.         In some cases that may produce an appropriate result but in many others it is likely to be productive of a grave injustice.  We reject the concept that there is something special about the role of the male breadwinner that means that he should achieve such a preferred position in relation to the female partner.  To do so is to pay mere lip-service to gender equality.  Marriage is and should be regarded as a genuine partnership to which each brings different gifts.  The fact that one is productive of money in large quantities is no reason to disadvantage the other. . . .

    135.         When one asks the question with these considerations in mind, as to whether the award to the wife in this case of about 5 per cent of the assets, involved equal treatment of her as well as the husband, the answer is that such an award is far below what is reasonable that it cannot be accepted.

    136.         It is obviously unfair.  . . . ".

    [44]          89,301.

14. Figgins and White both made it plain that it is a major error to approach the contribution assessment process on the basis that one arrives at a figure that is sought to satisfy the needs of the homemaker and give the balance to the breadwinner.

15. Miller v Miller[45] was the first big money / short marriage case to be heard in the UK following White.  The case has been subject to considerable comment from the media and legal profession about the provision of £5 million for the wife following a marriage which lasted less than three years. 

    [45][2006] 1 FLR 151. See generally, Eekelaar J, Miller v Miller: The Descent into Chaos [2005] Fam Law 870; Bird, R. Miller v Miller: Guidance or Confusion [2005] Fam Law 874; M v M, Case Report [2005] Fam Law 537.

16. Prior to the marriage, the wife was a professional woman living in a flat in London, earning about £50,000 a year net.  The husband, a successful fund manager, earned more than £1 million annually.  Just before the wedding he received sale proceeds of £20 million.  The wife subsequently gave up her employment and oversaw the refurbishment of a holiday villa in the south of France until April 2002.  Early the following year the husband left the wife for another woman.  There were no children.

17. The husband's position at trial was that the wife was only entitled to be returned to her former position which could be achieved by allowing her £500,000 to purchase a flat and £120,000 to cover three years' revenue shortfall while she worked her way back to her pre-marriage level.  In total, therefore, his offer amounted to £1.3 million. 

18. The wife's opposing case was that, as a consequence of the decision in White, the proper approach was to calculate her award by reference to the increase in the husband's fortune during the period of the marriage.  She claimed £7.2 million, or 37.5 per cent of the marital acquest.

19. The trial Judge, Singer J, rejected both approaches.  He decided that the wife's half share in the French villa (which was purchased in joint names) should go to the husband while the wife should have the London home valued at £2.3 million.  He added a lump sum of £2.7 million, giving a global award of £5 million to the wife. 

20. Detailed consideration was given on appeal to the correct approach to determining claims arising out of short marriages.  The principle drawn from the early cases such as S v S, [46] Robertson,[47] and Attar v Attar (No 2),[48] was that the award should be sufficient to get the wife back on her feet.  Thorpe LJ indicated that there were a number of reasons why that should no longer be the modern approach. 

    [46] [1977] Fam 127.

    [47] [1983] 4 FLR 387.

    [48] [1985] FLR 653.

21. Firstly, it originated and developed when the yardstick for measuring the extent of the applicant's claim was an assessment of her reasonable requirements.  Secondly, a marriage was not to be equated with a purely financial venture.

22. His Lordship indicated that the relevant statutory provision required a much more sophisticated evaluation of the extent of the wife's commitment to an investment in the marriage both emotionally and psychologically.  He stressed that what a party had given to a marriage and what a party had lost on its failure could not be measured simply by reference to its duration especially where the breakdown is brought about by a breach of trust by one of the parties.

23. Thorpe LJ found that the old cases were precluded by the decision of the Court of Appeal in Foster v Foster. [49]  Hale LJ saw the decisions in White, Cowan v Cowan[50] and Lambert v Lambert [51] as signalling a fresh approach to calculating awards in cases involving marriages of short duration.  His Lordship held that it cannot matter whether a substantial surplus generated by joint efforts had taken a long or short time to achieve.   The trial judge decided that the right approach was to return each party to their original positions and to share the wealth accumulated during the marriage equally between them.  That approach was upheld by the Court of Appeal. 

    [49] [2003] 2 FLR 299.

    [50] [2002] Fam 97.

    [51]          (2003) 1 Fam Law R 139.

24. Both Thorpe LJ and Wall LJ agreed that Foster plainly applied the White principles to short marriages.  Thorpe LJ held that because the husband was to blame for the breakdown of the marriage, the trial Judge was perfectly entitled to give much less weight to the short duration of the marriage than he may have otherwise done.  Wall LJ agreed that the pre White cases were discriminatory and no longer good law. 

25. Thorpe LJ found that the true ratio of Singer J's judgment and the decisive factor was that the marriage, taken in its full context gave the wife a legitimate entitlement to a long term future on a higher plane of affluence than she had enjoyed prior to the marriage.  Thorpe LJ stressed that the wife's 'legitimate expectation' of a better standard of living as the ex-wife of Mr Miller was a fact dependent conclusion and was not to be elevated to a principle or yardstick. 

26. Admittedly, Miller was an exceptional case.  It clearly does not provide a magic formula in short marriage cases.  As Wall LJ made plain in rejecting the husband's 'flood-gates' argument, that the reasons for the failure of a marriage will only be relevant and admissible in a handful of cases: where the marriage is short and childless and where the assets are substantial, so much so that it can be said that a fair order can be met without affecting the payer's needs.  However, despite the exceptional level of assets in the case and the different legislation, there are a number of matters raised by the judgments of the Court of Appeal which may have application to longer marriages and situations involving fewer assets and I direct myself by reference to the trend reflected in cases like Figgins and Kennon in Australia and White in the UK. [52]

    [52]cf., however, Doolan, P., Confusion reigns supreme - The Family Court grapples with Superannuation and big money cases: Part II (2006) 12 CFL 16 at 24.

27. I readily infer the wife here would probably have had much the same expectation as the wife in Miller. It is unlikely that when entering into the marriage, although the parties were aware of the possibility of divorce (having regard to their matrimonial history), they expected not to remain married for life. Indeed, they promised to do so. Surely, anyone with that state of mind who marries a person with financial means late in the game, will have a legitimate expectation that once married his or her standard of living will increase permanently. The disappointment of that reasonable expectation is a relevant consideration under paragraph 75(2)(o) even though it is not expressly mentioned in section 79(4).

28. The parties' total assets increased from $2,662,000 in 1998 to $3,460,564.  This is due mainly to the $800,000 increase in the husband's golf course.  The wife's own financial position has improved from $85,000 to $191,289.  Her superannuation asset at the commencement of the relationship in 1998 was $8,457.

29. The wife's initial contributions amounted to 3.15 per cent of the total asset pool of $2,697,000.  They currently represent 5.5 per cent ($289,452 - $98,163 ÷ $3,460,564 x 100).

30. Admittedly, $50,790 or 1.5 per cent is attributable to the superannuation, $38,633 of which was paid in by the D Super Fund in October 2003.

31. However, the wife cannot really receive any less than 5 per cent of the property on account of direct financial contribution. 

32. The question is whether she is entitled to any more or, more specifically, whether she has any claim over the acquest or the increased value of the golf course etc. I think she can legitimately claim a share based on her indirect financial contribution via the work she did and the taxation advantages she represented to the business,[53] and the non-specific contribution under s 79(c) to the family and the husband's emotional well-being.

    [53]In Lee Steere, the Full Court acknowledged that " . . . the splitting of income tax is a direct and immediate financial benefit to the husband and to that extent a direct financial contribution on the part of the wife" any argument to the contrary is unsustainable in view of the decisions in Elias and Elias (1977) FLC 90-267 and Jordan and Jordan (1997) FLC 92-736.

33. I am satisfied that the wife did all that was required of her given the shape and nature of this marriage.[54]  She contributed all that she could financially and emotionally.  The husband clearly benefited from the role the wife played in his life.  She invested qualities in relationship no less important and attractive to him, though less tangible, than he did.  Most importantly, she dedicated five years of her life to being a good and loyal supporter of the husband and his business.  Among other things, she altered her patterns of workforce participation in reliance upon the security of the relationship, thereby putting her own long term economic fate in his hands.

    [54]          See Kennon at 84,298.

34. The fact that the husband made almost equivalent contributions to the wife's welfare does not mean that they cancel each other out.  This, as the Full Court clearly recognised in Kennon (at 84,298), would have the effect of leaving the husband's financial contribution as the only one to count for anything.  To do that would be wrong in principle and unfair in effect.

35. Both parties contributed to the marriage during the period of appreciation but the increase is related more to past contributions of the husband and inflationary pressures than joint effort. 

36. The husband maintained the golf course since separation and built the property and business up by his own pre-marriage efforts.  He carried out extensive repairs in June 2005.  Consequently, he has a special claim to the increase.  I think they should share unequally in the added windfall value. 

37. The wife should get a total of 7.5 per cent ($259,542) based on contribution, represented by the approximately 5 per cent she retains and a 2.5 per cent loading reflecting her other indirect Kennon type contributions.  This gives her an extra $86,514, or about a 10 per cent share in the increased value of the golf course.

Adjustment Factors

1. Section 79(4)(e) requires me to consider the matters in s 75(2). The most relevant of these here are in pars (b), (g) and (k), with any remaining ground being covered by the operation of par (o).

2. Irretrievable breakdown of a marriage – irrespective of how long it lasts - has serious social, financial and psychological consequences for those who suffer it.  The object of the adjustive process is not simply to provide the wife in a short and childless marriage with enough money to make her economically independent or to "put her back on her feet". 

3. The aim is not to equalise the parties post separation economic positions either.  It is to achieve financial fairness or economic equity by reducing anomalies and bridging gaps after relations have broken down.

4. The husband has a much higher income earning potential and greater assets and financial resources than the wife.

5. The husband acknowledges the obvious difference in financial resources between the parties but asserts that disparity alone does not give rise to any s 75(2) adjustment. He says there has to be some proven nexus between the disparity and the circumstances of the marriage. He also contends that the wife has to show economic disadvantage arising out of the role she played in the marriage before being entitled to any 75(2)(k) adjustment and she cannot do this because if anything she owes her radio career to the husband's connections and her luck in being married to him at the right time. Finally, the husband argues that no adjustment under s 75(2)(g) is justified on lifestyle grounds particularly after property division just because hers will be as high at least as it was before the marriage.

6. The role and function of s 75(2)(b) as an adjustment factor is authoritatively dealt with in Collins. [55]  It is clear as I have already said that the provision either alone or in combination with other relevant matters mentioned in 75(2) is not a source of social engineering or a back door method for sympathetic judges to even up the parties financial positions.  Nevertheless, the obligations of the parties to a marital relationship lasting for "a not insignificant period" of five years or more do not end with the failure of the marriage. [56]  There is no rule of law or discretionary principle requiring some causal connection between economic discrepancies and the marriage relationship to activate s 78(2)(b): cf. Guest J in Farmer and Bramley [57] and Kay J in the same case at 87,950 as well as the comments of the Full Court in Dickson. [58]

   [55] (1990) FLC 92-149.

   [56]          Kennon at 84,303.

   [57] (2000) FLC 83-060 and 87,981.

   [58] (1999) FLC 92-843.

1. The rationale for making an adjustment pursuant to s 75(2)(b) is to be found in what Fogarty J had to say in Waters and Jurek at 82,378-823.  While I am unable to identify any specific economic disadvantage, such as impaired earning potential to the wife arising out of the marriage, I am nevertheless satisfied that the disparity in the parties' current and likely future financial circumstances arises as a result of the differential in their earning power during the marriage, their joint decision as to the way they would and did conduct their financial affairs, the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities that entailed and of the sudden and striking transformation of the wife's situation due to the termination of that relationship.

2. The financial disparity is therefore directly attributable to the marriage and the mutual decisions made by the parties but only in a small way.

3. While the relative shortness of the marriage did not have any negative impact on the applicant's earning capacity (the ability to earn money either by way of wages or profits within the meaning of s 75(2)(k)) she did lose income as a result of the marriage and has been generally disadvantaged in both her career and employment prospects.

4. When dealing with the s 75(2) factors, the majority judges in Kennon made a number of relevant general observations. They noted, on the one side, that the marriage was a relatively short one with no children and the wife was able to continue employment of the type which she had previously engaged in but saw the disparity in the financial positions of the parties and their future financial prospects as an obvious and compelling adjustment factor.  The wife’s income and earning capacity at trial and for the future was found to have deteriorated from what it was at the time of cohabitation and that this was, to a significant degree, attributable to the marriage and mutual decisions made by the parties during the marriage.  She had gone from $45,000 per annum to $36,000 a year in seven years.

5. The ultimate figure of $200,000 allowed by the trial judge was deemed insufficient.  It represented in percentage terms about two percent of the total property or one-fifth of the husband’s income for a year. 

6. The financial disparity between the parties could only appropriately be recognised by an order for an additional $300,000 giving an overall figure of $700,000 together with the retention of property which she then had.  The Court conceded that this represented a small percentage of the husband’s assets and that some may see it as a “modest” award but pointed out that the limiting factors, namely the origin of the property, the length of the marriage, the circumstance that the wife did not have the responsibility for children, and that she is employed full time had a limiting effect on the quantum of her claim.

7. Despite its brief duration, the standard of living enjoyed by the wife during this marriage is also a relevant s 75(2) factor under par (g).

8. Having regard to the considerations mentioned above an increase of 7.5 per cent to the wife's contribution based entitlement in my view is called for.  This will compensate her for her comparatively poorer post-separation economic position and provide her with sufficient funds to re-establish herself adequately and enjoy a reasonable, though not lavish, lifestyle in her new situation as a single person.

9. I will therefore order the husband to pay the wife $518,945 to finalise their financial relationship.

Orders

1.The husband pay to the wife the amount of $518,945.00 in a lump sum by 4.00 pm on 31 May 2006.

2.Otherwise, the parties are deemed as between themselves to be the absolute owners of the property currently in their respective possession or control.

3.The matter be removed from the list of cases awaiting finalisation.