Once of the most common characteristics that we experience in
Family Law Property Matters is that parties do not understand how
their various contributions to the relationship are assessed. More
often than not (although we are finding that this is becoming less
and less the case) relationships are divided in a
"traditional" way. By that, I mean that it is
normal that one party is the "breadwinner" and
to the other person the majority of the domestic duties fall.
One of the most fundamental misunderstandings that people have
is that the contributions that are financial (that is, those made
by the main breadwinner) should be given more weight or viewed
differently to those made by the homemaker and parent. That is, in
general terms, not the way that the Court assesses contributions.
It would be unjust and in equitable if over, for example, a 20 year
relationship, one person was a stay at home parent, and the other
person earned the majority of the income, and, as a consequence of
the way in which the parties arranged their financial and domestic
affairs, one person received an advantage as a consequence of them
going out and working. Therefore, the Court has always stayed away
from assessing contributions that are financial in nature as being
"more important" contributions than those made
by a homemaker and parent.
The reason for this is quite simple. The fact that a person is a
breadwinner is as a consequence of the fact that the other party
stays at home (either party time or full time) and looks after the
children and the home, which enables the breadwinner to go out and
earn. Therefore, the contributions made as a homemaker and parent
must be, and have been for some time, viewed the same as those as
the main breadwinner. It would, as indicated, be quite unjust if a
situation were to arise that a decision (most likely jointly) was
made for one party to stay home and look after the children, and
have caused a spouse to be disadvantaged in terms of what
percentage of the property pool they receive, as a consequence
merely of the agreement that the parties had come as to how they
would arrange their affairs.
There has been, as a consequence of a recent case Ritter
& Ritter a potential shift in the way that the Court views
these contributions (if this case is followed in the future, as, at
the moment it is a stand alone case). In that case, the Court
assessed one party's contributions as being superior to the
other party in circumstances where they had worked full time and
also done the majority of the homemaker and parent contributions. I
have always found it is very difficult to determine who has
performed the bulk of, in particular, the homemaker contributions.
It is very often a case of "word against word", as very
rarely is there again any objective evidence that indicates that
one person has done more of the housework that the other. In terms
of the parenting contributions, that is quite often more objective
to assess, however, as indicated above, one person should be
disadvantaged as a consequence of the fact that the parties have
arranged their affairs such that the one person works in paid
employment and other person's role in the family is to be as
homemaker and parent.
In short, all contributions made, whether financial, non
financial, or as homemaker or parent, are valuable. However, if
there develops a line of precedent whereby if a person who works
and does the majority of the homemaker and parent duties, and
receives an additional share of the asset pool as a consequence,
couples may well have to assess the way in which the roles in the
family are divided, and whether they would be disadvantaged at
separation if they continue.
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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