G and N (No.1)
[2002] FMCAfam 20
•13 February 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & N (No.1) | [2002] FMCAfam 20 |
| FAMILY LAW – Property settlement – both parties previously married – neither party working – valuation of redundancy and superannuation benefits received and spent by the parties – contributions of the parties – husband in poor health – wife supported by first husband – just and equitable. |
Family Law Act 1975 (Cth), ss.75(2), 79
Bartlett & Bartlett (1996) FLC ¶92-721
DJM v JLM (1998) FLC ¶92-816
Farnell & Farnell (1996) FLC ¶92-681
In the Marriage of Aleksovski (1996) 20 FamLR 894
In the Marriage of Money (1994) 17 FamLR 814
In the Marriage of Townsend (1995)18 FamLR 505
Pierce v Pierce (1999) FLC ¶92-844
Shewring & Shewring (1988) FLC ¶91-926
| Applicant: | VJG |
| Respondent: | PJN |
| File No: | ZC2280 of 2000 |
| Delivered on: | 13 February 2002 |
| Delivered at: | Sydney (heard in Canberra) |
| Hearing Date: | 7 December 2001 |
| Judgment of: | Driver FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr J Nicholl John Nicholl & Co |
| Counsel for the Respondent: | Mr G Brzostowski |
| Solicitors for the Respondent: | Chris Crawley & Associates |
ORDERS
Within 60 days of the making of these orders, the husband is to pay to the wife the sum of $45,356.
That the husband be declared as against the wife, the sole legal and beneficial owner of all property, goods, chattels, furniture, furnishings and effects in his possession at the date of these orders, including but not limited to the real property at G in the Australian Capital Territory.
That the wife be declared as against the husband, the sole legal and beneficial owner of all property, goods, chattels, furniture, furnishings and effects in her possession at the date of these orders, including all moneys retained by the wife at the date of separation.
That the husband retain and the wife relinquish any claims she may have in law or in equity to his superannuation benefits.
That the wife retain and the husband relinquish any claims he may have in law or in equity to her superannuation benefits.
That each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
ZC2280 of 2000
| VJG |
Applicant
And
| PJN |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application for an adjustment of property interests. The parties are married and the applicant is the wife. The application is opposed by the respondent husband. The application was filed in this Court at Canberra on 20 September 2000. Progress in dealing with the application was slow, principally due to the wife being resident in the USA and the husband being hospitalised. The wife’s application sought orders that the respondent husband pay to the applicant one half of the value of a property situated at G in the ACT, together with one half of any moneys received by way of the husband’s redundancy from the Australian Public Service and, secondly, that upon receipt of any rolled over superannuation funds the respondent husband pay to the wife 50 per cent of any moneys received net of any income tax payable upon receipt of such moneys.
In his response filed on 30 October 2000 the husband sought the following orders:
(a)the respondent husband be declared as against the applicant wife the sole, legal and beneficial owner of all property, goods, chattels, furniture, furnishings and effects in his possession at the date of these orders;
(b)the applicant wife be declared as against the respondent husband the sole, legal and beneficial owner of all property, goods, chattels, furniture, furnishings and effects in her possession at the date of these orders;
(c)the husband retain and the wife relinquish any claims she may have in law or in equity to his superannuation benefits;
(d)the wife retain and the husband relinquish any claims he may have in law or in equity to her superannuation benefits;
(e)such further or other order as the Court considers appropriate.
At the commencement of the trial of this matter on 7 December 2001 the husband amended his response to seek the following orders:
(a)within 90 days of the making of these orders, the husband pay to the wife the sum of $25,000 (“the payment”);
(b)the husband be declared as against the wife, the sole legal and beneficial owner of all property, goods, chattels, furniture, furnishings and effects in his possession at the date of these orders, including but not limited to the real property at G in the Australian Capital Territory (“the real property”);
(c)the wife be declared as against the husband, the sole legal and beneficial owner of all property, goods, chattels, furniture, furnishings and effects in her possession at the date of these orders, including all moneys retained by the wife at the date of separation.
(d)The husband retain and the wife relinquish any claims she may have in law or in equity to his superannuation benefits;
(e)the wife retain and the husband relinquish any claims he may have in law or in equity to her superannuation benefits.
At trial the wife sought the following orders:
(a)That the husband pay to wife the sum of $100,000 within 30 days;
(b)that unless otherwise specified in these orders that each party be declared to be solely entitled to the exclusion of the other of all other property and chattels of whatsoever nature and kind in the possession or under the control of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof. Insurance policies are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions of payment out of such entitlements;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
It is apparent, therefore, that by the time this matter reached trial the issues in dispute between the parties had in substance narrowed to the amount of money that the husband ought to pay to the wife.
The wife was born on 1 October 1942 and is currently 59 years old. The husband was born on 30 December 1953 and is now 48 years of age. The parties met in 1982 and married on 20 March 1986. On
4 June 1996 the parties separated, having cohabited for approximately 10.25 years. Divorce proceedings in this Court are pending.
Both parties had been married prior to their marriage. The wife was born in the United States of America and travelled to Australia with her first husband who worked in Canberra. It was there that the parties met. When the parties separated on 4 June 1996 the wife returned immediately to the United States.
The parties occupied a house owned by the husband which he had acquired during the course of his first marriage. At the time of the marriage of the parties that house was subject to a Commissioner of Housing mortgage that was being met from the husband’s salary. Both parties worked during the course of the marriage. The husband worked full time. Between 1986 and 1992 the wife worked full time. She was involuntarily retired in 1992 and received a retirement superannuation payment of $40,000. In 1994 the wife obtained permanent employment but resigned in January 1996. Upon her resignation she received a termination payment of approximately $6,000. In addition, the wife was able to access accumulated superannuation benefits in 2000 of approximately $8,000.
In October 1997, following the separation of the parties, the husband took a voluntary redundancy, receiving $74,588.42 by way of salary, severance pay, recreation and other leave payments and $105,621.45 by way of superannuation ($25,000 of which remains preserved). In the same year the husband reached an agreement with his first wife concerning the home in G under which he paid her $9,700 in return for the transfer of her interest in the home to him and the husband subsequently discharged the mortgage over the home. The husband entered into formal consent orders for a property settlement with his first wife in 1998.
The parties have no children of their relationship. The wife has three children from her first marriage who live in the United States. At the time the parties were married, those children were all minors but did not live with the parties. The father has two children from his first marriage who were aged 8 and 10 years at the time of the marriage of the parties. The children lived with the father’s first wife but he had regular contact with them.
The wife enjoys good health. The husband has serious health problems, including cirrhosis of the liver, throat ulcers and severe arthritis. He has substantially reduced mobility, cannot drive and takes a substantial amount of medication. He has in recent times been forced to be hospitalised for significant periods. He has at times required emergency hospitalisation and resuscitation. He is totally and permanently disabled. He is prone to falls causing injury. His prognosis is very poor and his life expectancy is problematical (exhibits H3 and H4).
The wife’s case
The wife relied upon her affidavit filed on 10 July 2001 and her financial statement filed on 20 September 2000. Mr J D Nicholl, for the wife, also filed in Court on 7 December 2001 a valuation of the pool of assets as at 5 December 2001. There was disagreement between the parties as to what property each of the parties had brought with them into the marriage, the value of those items and the increase in the value of the matrimonial home during the course of the marriage. Written submissions on behalf of the wife were prepared by Mr Nicholl and filed on 11 January 2002. Mr Nicholl also tendered four documents at trial, which became exhibits. The wife seeks 40 per cent of the matrimonial assets to reflect her claimed contribution during and since the marriage and to reflect the factors which the Court is required to take into account pursuant to s.75(2) of the Family Law Act 1975 (Cth) (“the Family Law Act”).
The husband’s case
The husband relies upon his affidavit filed on 13 September 2001 and upon his financial statement filed on 30 October 2000. Mr J P Brzostowski, for the husband, also filed in Court on 7 December 2001 a valuation of the pool of assets as at that date. Written submissions on behalf of the husband were prepared by Mr Brzostowski and filed on 16 January 2002. Mr Brzostowski also tendered five documents at trial which became exhibits. It is the husband’s case that the wife should receive no more than 25 per cent of the matrimonial assets.
The net marital assets at the time of trial were valued by the parties at between $375,345 and $399,300. In addition, it was agreed that the parties had available to them additional resources of $26,200 in the form of preserved superannuation benefits. There was no disagreement between the parties as to the valuation of those financial resources and only approximately $8,500 difference between the parties on the value of net martial assets at the time of trial. However, after hearing the evidence of the parties Mr Nicholl and Mr Brzostowski diverged further in valuation of the asset pool in their written submissions. That increased the gap between the parties to $58,267.42. There is substantial dispute between the parties on the issue of contributions and on the s.75(2) factors.
The law
The approach to the determination of an application under s.79 of the Family Law Act is well established by authority. The process ordinarily involves a three step procedure: first, identifying the property, liabilities and financial resources of the parties at the time of trial of the matter, secondly, evaluating the contributions made by the parties as defined in s.79(4)(a)-(c) and, thirdly, evaluating the matters contained in s.79(4)(d)-(g) insofar as they are relevant (which incorporates the s.75(2) factors).
In determining what order the Court should make under s.79 the Court must in addition be satisfied, in all the circumstances, that it is just and equitable to do so: s.79(2).
Evidence and findings
In reaching my conclusions in this case I have been assisted significantly by Mr Nicholl and Mr Brzostowski, both in their oral presentations and in their written submissions.
Identification and valuation of net property
The following facts are not in dispute. The husband had an interest in the G home prior to the marriage commencing. The home is currently valued at $240,000. The G home is furnished but the value of that furniture is not known. The husband has $11,000 cash in the bank.
The husband admits having in addition $50,000 on deposit with the National Australia Bank. The wife asserts that the amount is $55,000 but I accept the husband’s figure. The wife admits having investments in the United States worth approximately $58,000. Those investments came from redundancy and superannuation payments she received during the course of the marriage which she took with her on leaving Australia. The wife also admits having cash in the bank of $100. The wife also has some furniture and personal effects, the value of which was the subject of some debate, but which is unknown. I have proceeded on the basis that the value of the parties’ furniture and effects is unknown, but should be treated as being the same.
It is agreed that the husband has available to him as a financial resource his preserved superannuation of $25,000 and that the wife has available to her as a financial resource her preserved superannuation of $1,200. There is dispute between the parties as to whether there should be added back into the asset pool moneys expended by the parties following the receipt of superannuation and redundancy payments and whether there should be added back into the asset pool legal fees paid by the parties.
The position is that the husband retired on or about 23 November 1997 after being employed for 22½ years. He received the sum of $74,588.42 by way of redundancy payments and in addition, $105,621.45 by way of superannuation payments in the form of a refund of his contributions plus interest. The husband gave evidence that he spent approximately $31,000 discharging the mortgage over the home at G (although he had earlier claimed to have had to pay more) and that he gave $9,700 to his first wife. The husband retains only about $11,000 of the redundancy payments. In relation to the superannuation moneys, the husband rolled over $25,000 leaving approximately $80,621. The sum of $50,000 remains on deposit with the National Australia Bank. The husband has spent about $30,000 of the superannuation payment he received. While he was not clear in his evidence what had happened to that money it appears that it has been expended on general living expenses. The wife has spent about $12,000 of the redundancy and superannuation and redundancy payments she received when she resigned in 1996. The wife admitted spending $6,000 in redundancy payments prior to separation and at least $6,000 of her superannuation benefits after separation. The money she received in 1992 was either spent during the course of cohabitation or retained by her.
Mr Nicholl submitted that the moneys expended by the parties from their redundancy and superannuation payments since the parties separated should be added back into the asset pool: In the Marriage of Townsend (1995) 18 FamLR 505. Mr Brzostowski opposed that submission on the bases that some of the money was used by the husband to discharge the mortgage over the home at G which remains as an asset, and that he is living on a modest pension of $220 per week and needed to supplement that income from his liquid assets. Mr Brzostowski further submits that the add back principle derived from Townsend only applies to cases where there is no reason to quarantine and apportion any part of the money received. Mr Brzostowski concedes, however, that it would be open to the Court to treat the superannuation moneys expended by the husband as a financial resource. In this, Mr Brzostowski invited the Court to follow the approach taken by the Family Court in Bartlett& Bartlett (1996) FLC ¶92-721.
In a strict sense money spent or property disposed of is not current property available for division between the parties. The Family Court has, however, held in a number of cases that it is nevertheless often appropriate to notionally add back such property or moneys into the available pool of assets in order to do justice between the parties. Where one party has expended money for his or her own benefit which has had the subsequent result of diminishing the pool of assets available for division, it is generally reasonable that the other party should not be disadvantaged by such actions and where appropriate notionally add back the money so expended.
I am not persuaded by Mr Brzostowski’s submission that the moneys expended by the husband should be treated as a financial resource. I think that approach would be more appropriate in a case where the benefit to the husband was pending but had not vested. Neither am I persuaded that it is necessary or appropriate to quarantine and apportion superannuation and redundancy benefits accruing to the parties. While it is reasonable to conclude that the husband was obliged to come to a property settlement with his first wife and moneys expended to achieve that settlement should be excluded from consideration, it is not reasonable to exclude from the asset pool moneys expended from superannuation and redundancy benefits by the parties for their own benefit. I will therefore add back into the asset pool moneys expended by the parties apparently on general living expenses since their separation. I will not add back into the asset pool the payment made by the husband to his first wife and the amount expended by him to discharge the mortgage, given that they were payments the husband was obliged to make and that that latter payment has not diminished the asset pool.
I will also add back into the asset pool amounts paid by the parties on their legal expenses, consistently with the principle laid down in Farnell & Farnell (1996) FLC ¶92-681 and DJM v JLM (1998) FLC ¶92-816.
I have not included any liabilities. No current liabilities are claimed by the husband. The wife claimed liabilities to the Visa card organisation. I reject the submission that that liability should be included on the grounds that the liability appears to have arisen since separation and the wife is supported by her first husband who, as will appear later, meets her credit card liabilities. The wife asserts that she would like to reimburse her first husband for amounts charged on the card but she has no legal obligation to do so.
There is a dispute between the parties as to the proper valuation of the wife’s US investments. I find that the wife has understated her US investments. She admitted under cross-examination that she invested $US25,000 from the money that she took with her from Australia, and that she spent $US5,000. The Australian dollar equivalent of that latter amount needs to be added back into the asset pool in addition to the $6,000 superannuation benefits that the wife admitted spending since separation. The amount invested would be worth approximately $50,000 now, even if it had not increased in value since 1996. Exhibit H2 (the wife’s US income tax return for 1999) discloses that she sold shares in that year worth $US25,962, producing a capital gain of $US7,840. I find that the wife’s investments have increased in value since 1996. In addition, the investment needs to be valued at current exchange rates. I have decided to attach a value to those investments on current exchange rates of $65,000.
Accordingly, I find that the assets, liabilities and financial resources of the parties to be as follows:
Wife’s Assets
USA investments $65,000
Cash at bank $100
Furniture and effects unknown
Add back superannuation and other
benefits expended by wife
since separation $16,000
Add back wife’s legal expenses $10,700
Liabilities nil
Net assets $91,800
Wife’s Financial Resources
Preserved superannuation $1,200
Husband’s Assets
G house $240,000
Cash at bank $11,000
Funds on deposit $50,000
Furniture and effects unknown
Add back retirement
benefits expended by husband
since separation $52,888
Add back husband’s legal
expenses $11,500
Liabilities Nil
Net assets $365,388
Husband’s Financial Resources
Rolled over superannuation $25,000
Net marital assets $457,188
It follows that, at the time of the trial of this matter the division of marital assets between the parties was approximately 80:20 in favour of the husband.
Contributions of the parties
It is clear from the evidence that the contribution of the husband at the commencement of the marriage was predominant. It is, however, difficult to place a firm value on that contribution. The husband brought with him his interest in the G home. He gave evidence that the value of the home in 1986 was approximately $85,000 and that, at that time, the mortgage debt was $44,000. The husband is not a valuer and his evidence on the value of the home at that time is not highly reliable but there was no evidence to contradict it. From my own knowledge as a resident of Canberra during the period 1986-1996 I would say that the husband’s valuation was somewhat conservative and that the value in 1986 would not have been less than $85,000. I accept that as the value of the home at that time. The husband also provided furniture and effects and the wife also provided some furniture and effects, which I treat as being equal in value.
I was referred by Mr Nicholl to a line of authority including the decisions in In the Marriage of Money (1994) 17 FamLR 814, In the Marriage of Aleksovski (1996) 20 FamLR 894 and Pierce v Pierce (1999) FLC ¶92-844. Mr Nicholl submitted that the import of those decisions was that while the dominant contribution might have been made by one party at the commencement of a relationship, that contribution may be eroded over time by the contribution of the other party during the course of the relationship. Nevertheless, where contributions are made by one party bringing into a marriage real property, the courts have consistently emphasised the importance of it, whether or not the disparity of the contributions has been diminished by the length of the marriage: Shewring & Shewring (1988) FLC ¶91‑926. In addition, it is clear from the judgment of the Full Court in Pierce v Pierce (a decision with a factual situation not dissimilar to the present case, involving cohabitation of 10 years and a house of similar value) that the issue is not so much a matter of the erosion of an initial contribution by the passage of time and by contributions of the other party but a question of what weight is to be attached in all the circumstances to the initial contribution. It is necessary to weigh the initial contributions by one party with all the other relevant contributions of both the husband and the wife. It is necessary, therefore, to consider carefully the contributions made by both parties during the period of cohabitation.
The husband worked full time during the whole period of cohabitation. The wife worked full time between 1986 and 1992 and part time for a relatively short period before resuming full time work until she retired in 1996. The wife conceded, however, that her employment between 1986 and 1992, while full time, was not continuous. The income earned by the husband was greater than that of the wife and the wife was able to retain most of the redundancy benefits that she received in 1992. While the wife gave evidence of making contributions to the purchase of items for the home and garden and the purchase of clothes for the husband these contributions were relatively modest and were certainly no greater than that of the husband. I do accept that the wife made significant non financial contributions. She played the role of a home maker and also assisted the husband during those periods when his children were in his care. The wife also did all of the driving for the parties. There was evidence that the husband has had, for many years, a drinking problem. The husband denied this but I am inclined to conclude that he has been a heavy drinker since the parties commenced cohabitation and that his drinking has increased his reliance upon the support of others. The husband’s denial that his health problems are related to his drinking lacks creditability. The contribution of the wife assisted the husband to maintain his employment during the period of cohabitation.
The parties’ support to each other in the periods of their employment not only provided support in the earning of income but also permitted the accumulation of superannuation. The income of the husband was greater than that of the wife and his accumulation of superannuation benefits was substantially greater, noting also that he had commenced accumulating superannuation some 12 years before the parties married. The period of cohabitation amounted to a little less than half the period during which the husband gained his superannuation and redundancy entitlements. On the other hand, the period of cohabitation was effectively all of the period during which the wife earned her redundancy and superannuation benefits. The effect of this is to equalise the contributions of the parties to the accumulation of retirement benefits.
Issues of credibility are relevant in considering the evidence of the parties concerning their respective contributions. Mr Nicholl submitted that the evidence of the husband should be discounted due to his lack of credibility. The husband asserted in his evidence that the contribution of the wife during the period of cohabitation was minimal. The wife was clearly a more appealing witness. She gave her evidence clearly and in what appeared to be an open and frank manner. In contrast, the husband alternated between being surly and uncooperative and being outright abusive. It is, however, necessary to take into account that the husband is clearly a very sick man. He deposed that he was very upset by his wife’s application because he thought (mistakenly) that they had settled matters between them in 1996. It was clear from the husband’s demeanour in the witness box that he bitterly resented being in court at all. He was also obviously in extreme discomfort due to his poor health. The recollections of the husband on specific issues were at times inconsistent and unreliable. At the same time, however, I concluded that the wife was prone to over emphasise the extent of her contributions. I conclude that the wife’s contributions during the period of cohabitation were rather more than those asserted by the husband, particularly when one considers non financial contributions, but somewhat less than those asserted by the wife.
The husband brought into the relationship real estate with a net value in 1986 of at least $40,000 and probably more. The wife contributed little at the outset and the items she brought with her probably amounted to no more than $5,000. In addition, the husband earned more during the course of the marriage and worked more consistently. There were no children of the marriage, although the wife provided support to the husband in his care of his children from his first marriage. The parties contributed equally to the maintenance and improvement of the home during the course of the marriage and also contributed equally to the accumulation of superannuation and redundancy benefits by each of them. The wife contributed more than the husband in the form of non financial contributions as a home maker and carer of the husband. She also assisted him in the care of his children. Since separation, the husband has made a substantial contribution in paying out the mortgage on the G home. However, the overall value of the home has increased significantly (between three and fourfold) and the wife made a contribution during the course of cohabitation which assisted in that increase in value. The wife also contributed since separation in the successful investment of her retirement benefits.
The assessment of contributions is not a meticulous mathematical exercise. It needs to be dealt with broadly in order to achieve an end result that is just and equitable. The husband contributed around 90 per cent of the marital assets at the start of cohabitation and retains around 80 per cent. While the husband was the major contributor during the course of the marriage, and by far the dominant contributor at the outset, the wife did make a significant contribution over time. The parties are solely responsible for the increase in the value of the assets that they currently hold since separation and, for that matter, for the dissipation of those assets. Having regard to all of the matters outlined in s.79(4)(a)-(c) I conclude that the contribution of the parties should be taken to be 70 per cent to the husband and 30 per cent to the wife.
Section 75(2) factors
The wife is 59 years of age and in good health. She has not been in paid employment since 1996 although she has earned small amounts of money teaching bridge and intends to establish a bridge school in Australia. The husband is 48 years of age and has serious health problems. It is not disputed that he is unable to work. He lives on an indexed pension currently of $11,851 per annum. He has applied for a disability pension. The husband also has an unencumbered house to live in and cash resources of $61,000 plus superannuation of $25,000.
The wife has some capacity to work but that is limited by her age and period out of the workforce. She does not own a home but it permitted by her first husband to live in a home he has provided for her. She also has access to a car. The wife’s first husband is the CEO of an American corporation supplying ordnance to the United States military. His annual income is probably somewhere between $200,000 and $500,000. He provides generous financial support to the wife on a voluntary basis. The extent of that financial support is not ready amenable to quantification but she has access to a credit card on which she is permitted to purchase goods and services to meet her needs. This has included some travel to and from Australia. The wife gave evidence that she exercises voluntary restraint upon her use of this facility but that no particular limit is imposed by her first husband. The wife conceded that the value of the financial support she receives is at least as great as the value of the husband’s pension. The wife gave evidence that she is embarrassed by her dependence upon her first husband and that his support could be withdrawn at any time. There is, however, no indication that there is any likelihood that his support will be withdrawn. While I have not taken into account the support provided by the wife’s first husband as a resource for the purposes of the valuation of assets, I do take into account his support as a financial resource for the purposes of the consideration of s.75(2)(b) of the Family Law Act. The wife also has her US investments which I have valued at $65,000.
Neither party has a current responsibility for the care of any minor children or any other person. The wife gave evidence that she is not eligible for a US pension but that she may be eligible for an Australian pension but she is not currently in receipt of one. The husband may be eligible for a disability pension.
The husband has expended a substantial amount of money since his retirement which is suggestive of an improved standard of living since the separation of the parties, albeit that his health has deteriorated which would have necessitated increased medical expenditure. The standard of living of the wife appears to be little altered from what she enjoyed during the period of the marriage of the parties, albeit that the maintenance of this standard is heavily dependent on the goodwill of her first husband. There is no suggestion that the wife is cohabiting with her first husband, or anyone else. Neither is there any suggestion that the husband is cohabiting with anyone.
Having regard to the above factors enumerated in s.75(2) I conclude that no adjustment is required in favour of either party by reason of those factors. In my view, the factors cancel each other out.
I conclude overall that, having regard to the contributions made by the parties during the course of cohabitation, the assets brought into the marriage by the parties and the contributions made since separation, as well as the 75(2) factors, that there should be an adjustment of property interests in favour of the wife of no more than 10 per cent. The husband should receive 70 per cent of the marital assets and the wife 30 per cent. The adjustment of property interests will result in a payment by the husband to the wife of $45,356.
Is this just and equitable?
The husband currently has an unencumbered legal interest in real estate, which the wife does not have and has enjoyed the use of somewhat more liquid assets than the wife. However, given the husband’s very poor health and his inability to work his need for financial security is great and so is his need for readily available financial assets. The husband brought the vast majority of assets into the relationship between the parties and the duration of that relationship was only a little more than 10 years. The husband was also the major contributor during the course of the relationship. The wife is able to call upon the support of her first husband who appears able to provide that support with relative ease. While the wife has no legal entitlement to a continuation of that support that support is a fact and is likely to continue. The husband has no such support available to him. The husband should not be compelled to expend all of his cash financial resources or encumber his home in order to make up an adjustment of property interests in favour of the wife. The husband will be able to make the payment required of him by the orders that I will make without causing him hardship or injustice. He will retain the G home and approximately $16,000 cash, and will have available to him his preserved superannuation benefits, and his pension.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 February 2002
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