Smith & Smith (No. 2)

In *Smith & Smith (No. 2)*, the wife sought leave to institute property settlement proceedings out of time, which the husband opposed, contending an earlier oral agreement precluded any further claim. The dispute before Strickland J concerned whether the wife should be granted leave to proceed with her property settlement application and, if so, how the parties' assets should be divided.

The court was required to determine two primary legal issues. Firstly, whether the wife should be granted leave to institute property proceedings pursuant to section 44(3) of the *Family Law Act 1975* (Cth), considering the principles applicable to such applications. Secondly, if leave were granted, the court needed to determine the appropriate property settlement orders, taking into account the parties' contributions, the impact of the husband's gambling on their finances, his poor health and inability to work, and the disparity in their incomes and earning capacities.

Strickland J reasoned that the oral agreement relied upon by the husband did not constitute a financial agreement within the meaning of the *Family Law Act* and therefore did not oust the court's jurisdiction under section 79. The court found that the terms of the oral agreement were neither just nor equitable in the present circumstances. Applying the principles for granting leave to institute proceedings out of time, the court granted the wife leave to proceed. In determining the property settlement, the court made a 10% adjustment in favour of the husband under section 75(2) of the Act due to his health and earning capacity. Ultimately, the assets were divided 55% in favour of the wife and 45% in favour of the husband. The court ordered the husband to pay the wife $120,320.00 within eight weeks, contemporaneously with the wife withdrawing a caveat on the husband's property. The remaining assets were to be retained by each party as specified in the orders.