Australia: In a property dispute, what are my contributions as homemaker and parent really worth?

Last Updated: 4 July 2014

"It has long been established that contributions as a homemaker are not to be assessed in a "token way" but in terms of their true worth towards the building up of assets" – Justice Crooks, J and P [2012] FCWA 100

In determining Family Law property disputes, the Family Law Act 1975 requires an assessment of contributions made by the parties during the relationship. Contributions made throughout a relationship are categorised as either financial or non-financial, with both of these categories including direct and indirect contributions.

Financial and non-financial contributions made by parties are considered in the same manner and can be allocated equal weight when negotiating a property settlement or by the Family Law Courts. The role of homemaker and parent falls within the category of non-financial contributions.

The Courts have long held that financial contributions carry no greater weight than contributions as a homemaker and parent. [i] It is the existence of the contribution and not the type of contribution that is considered.

Contributions as homemaker

The domestic duties performed in the relationship are considered as homemaker contributions. When considering these contributions, the Court is not concerned with the actual duties performed, but rather the fact that they were performed and by whom they were performed.

Relevant factors include whether or not the domestic duties were full or part-time, who performed them and whether or not the parties made use of domestic help in completing these duties, such as employment of a cleaning lady or gardener. The use of domestic help, whether paid or otherwise, can be taken into consideration by the person claiming that it was their responsibility.

In Rolfe v Rolfe (1977), one of the earliest cases of assessing the significance of a homemaker contribution, Evatt CJ held that:

"the purpose of s79(4)(b) in my opinion, is to ensure just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a homemaker and parent to the property. A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes the responsibility for the home and the children. Because of that responsibility she may earn no income or have only small earnings, but provided she makes her contribution to the home and to the family the Act clearly intends that her contribution should be recognised not in a token way but in a substantial way. While the parties reside together, the one earning and the other fulfilling responsibilities in the home, there is no reason to attach greater value to the contribution of one than to that of the other. This is the way they arrange their affairs and the contribution of each should be given equal value."

Accordingly, the view remains that the Act requires the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets.

Contributions as parent

Parental contributions are also considered non-financial contributions to the relationship. These contributions include, among many other things, the raising, feeding and disciplining of the children, dropping them to school, extracurricular activities, and attending and/or assisting to the children's health, wellbeing and educational needs.

Again the Court is not concerned with the specific duties performed by the person claiming to be the main contributor to the parental responsibilities in the relationship. The availability of the parent claiming to have made the significant contributions and whether or not the parties have made use of hired help, whether paid or otherwise, can be taken into consideration by the person claiming that it was their responsibility.

Referring to our previous example of classic family law property settlement available here, you often encounter a couple who married when they were young and neither party had assets of significance. The couple start out working, they buy a house, they start a family and the husband continues in his paid employment while the wife stays home to raise the children. Then, after 20 years or so, they decide to separate. Their asset pool includes the parties' home, their super, a couple of motor vehicles, furniture, bank accounts and various other items, with a net value of up to $1m or so.

In their circumstances, the husband has made the greater financial contribution as he was working full-time for the majority of the relationship, while the wife has made the greater contribution as a homemaker and parent, as she was the one who looked after the children and the household full-time.

In this example, the Family Court would generally consider the parties' contributions as equal, giving just as much worth to the wife's non-financial contributions as homemaker and parent to that of the husband's financial contributions, as the family unit was a joint endeavor and the parties' respective roles were both equally necessary. This would generally be expected to result in a 50/50 division of the marital asset pool subject to any necessary adjustments for the parties' future needs.

Accordingly, the Court recognises the important role of parties who made the contributions as homemaker and parent when determining a property settlement. These contributions are not given "token" consideration but rather, often the same weight as financial contributions.

i[Racine v. Hemmett (1982) FLC 91-277 at p 77,574; Wardman v. Hudson (1978) FLC 90-466; Potthoff v. Potthoff (1978) FLC 90-475; Crawford v. Crawford (1979) FLC 90-647, at p 78,411; Rolfe v. Rolfe (1979) FLC 90-629, at p 78,272; Zdravkovic v. Zdravkovic (1982) FLC 91-220, at p 77,207; Mahon v. Mahon (1982) FLC 91-242, at p 77; Mallet v. Mallet [1984] HCA 21; (1984) 156 CLR 605 at 15.

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.

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