By Kate O'Leary
Section 79 of the Family Law Act establishes the general principles for a court to follow in order to settle financial disputes.
Whilst direct financial contributions to the relationship, such as earnings, are a significant factor in determining the contribution to the asset pool, so to are the non-financial, and indirect, contributions of each party to the relationship.
The provisions of s 79(4), paragraphs (a) to (c) require the court to assess, from a retrospective examination, both the financial and non-financial contributions of the parties.
Non-financial contributions are contributions made which have increased the size of the net asset pool. Such contributions can encompass the improvement and conservation of the family home through a spouse's own labour (such as repainting the home, landscaping, or renovations).
The concept of an indirect financial contribution is a contribution, or an action, made by one spouse whereby that action or contribution allows the other spouse to directly financially contribute to the acquisition of assets. For example, in the instance where a wife gives up a working career to raise the children of the relationship, and thus enabling, or freeing-up, the husband to contribute to the financial build-up of assets, the wife can be seen to have indirectly contributed to the property pool.
Take for example the situation where a mother gifts money to her son (a spouse), or where a father provides labour, such as building a house, to his daughter (a spouse); both spouses can be viewed as providing indirect contributions to the asset pool.
Whilst non-financial and indirect contributions are not given a specific dollar value, they are considered by the court in deciding whether there should be a percentage adjustment to either party in dividing the asset pool.
In Marriage of Whiteley [1992] FLC 92-304 the indirect financial contributions of the wife to property were recognised. In this matter Wendy Whiteley, wife of artist Brett Whiteley, was found to have made significant contributions to her husband's art work and success by providing him with artistic inspiration and supporting him intellectually as a critic and confidante during the course of the marriage. These contributions were in addition to her roles of artist's model, business support, and homemaker and mother.
Rowlands J, at [298-9], stated "[g]iven the endeavour with which the husband is concerned, inspirational input clearly has the capacity to influence success." Substantial credence to that proposition was given by the husband when he said of his wife "All of my work has been hinged to her, drawn firmly, aesthetically from her" and "If ever I have a retrospective it will be a chronological testament to my relationship with Wendy."
In summarising, Rowlands J stated "Looking overall to the contribution aspect of the case it is clear that the husband, because of his special skill as an artist, has made by far and away the major contribution to the substantial assets the parties now have. His is an unusual talent which has been instrumental in reaping a rich reward. However, given this situation, the wife's contribution has been unusually helpful to him in the process."
In balancing the matters bought for his consideration, Rowlands J assessed the contribution 70:30 in favour of the husband.
It is pertinent to seek advice regarding the distribution of assets on the basis that each individual set of circumstances is unique, and it is a question of weight for the Court to weigh each party's initial contributions with all other relevant contributions during the relationship.
It should be noted that the court will only make an order for settlement of property when it is satisfied that it is just and equitable to make such an order.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
