HERBERT & BORDEN

In the matter of *Herbert & Borden*, Judge Riley of the Family Court of Australia considered a property settlement and spousal maintenance dispute between Ms Herbert (the wife) and Mr Borden (the husband). The wife had made a significant initial contribution to the marriage, but her equity in the matrimonial home had been substantially depleted by borrowings used for the husband's company. The wife lacked the capacity for gainful employment, and the primary assets available for division were the wife's home and the husband's superannuation. A key point of contention was a debt owed to the wife's father, with the parties disagreeing whether it was a debt of the parties or solely of the husband's company.

The court was required to determine how to divide the parties' assets and liabilities, including the husband's superannuation interest, and whether the wife was entitled to spousal maintenance. Specifically, the court had to ascertain the nature of the debt owed to the wife's father and its impact on the property pool. Furthermore, the court needed to assess the wife's inability to support herself and the husband's capacity to provide financial assistance by way of spousal maintenance.

The court ordered a division of the husband's superannuation interest, allocating a base amount of $57,938.21 to the wife, to be paid by the Trustee of the superannuation fund in accordance with the Family Law (Superannuation) Regulations 2001. The husband was also ordered to transfer Virgin shares to the wife or pay her $700, and to reimburse her for payments made for his superannuation statements. The husband was further ordered to pay the wife $11,400 for unpaid weekly instalments. The court ordered the husband to pay the wife spousal maintenance of $500 per week for 15 years, indexed annually. The parties were directed to attempt to refinance the mortgage over the matrimonial home so that the wife was solely liable; if this was not achieved within 60 days, the wife was to arrange the sale of the property, with proceeds applied first to sale costs, then to discharge the mortgage, and the balance paid to the wife. Each party was otherwise to retain their own property and be solely liable for any liabilities encumbering it.