For the majority of marriages there is a division of roles, responsibilities, and duties. This usually involves one party being the ‘home maker’ and the other party being the ‘bread winner.’
On the issue of property settlement, a societal presumption is that the bread winner should be entitled to a higher percentage of the overall property division. But is this the correct presumption?
The Family Law Act 1975 (‘FLA’) provides for an assessment of financial and non-financial contributions which can be interpreted to be an emphasises on the social and economic partnership of a marriage or de-facto relationship.
The FLA recognises that the different contributions made to the marriage cannot simply be assessed in monetary terms, and that the home maker be seen as an indirect contribution to the acquisition, conservation or improvement of the party’s property pool.
Section 79(4)(b) of the FLA is a good illustration of how non-monetary contributions impact the party’s overall property pool. For instance, the construction of this section gives recognition to the position of the home maker, who by their attention to the home and the children ultimately frees the bread winner to earn the income and gain the assets.
In the case of Mallet (1984), his Honor considered the importance of the homemaker and expressed the following: ‘starting proposition that the contribution made by the wife as a homemaker and parent should be recognised not in a token way but a substantial way.’….’such contribution ought to be equally equated to the efforts of the husband who is thus freed to pursue his direct outside employment.’
What is commonly seen as a convenient starting point for the division of the party’s property pool, is to act on the presumption of equality between the home maker and the bread winner. Ultimately, it is the Courts discretion as particular facts of a case may justify a finding of greater contribution by one party in comparison to the other.
Overall, the assessment of the contributions made by the home maker and bread winner is an economic unit between equals. It is incorrect to assume that the direct financial contribution made by one party is substantially more significant than the non-financial contributions made by the other party to the marriage.
Our family lawyers are regularly assessing the facts and circumstances when it comes to quantifying the contributions made to the marriage, and the overall entitlement to the property pool. It is important that you seek specialist family law advice regarding your entitlement to property. Please contact our family law team on (07) 5619 5933.