Australia: Should the husband get a much larger share of the marital assets than the wife after their divorce? Which case won?

Last Updated: 19 September 2018
Article by Rita Fisher

The Facts

Couple were married for ten years and had two children

The husband was aged 39, the wife was aged 37 and they had been married for about ten years at the time of separating. They had two children.

When they started living together, the husband had assets of a total value of $226,000, while the wife had assets of a total value of $11,500.

The husband was employed at all times and the wife was employed until shortly before the first child was born, then employed part time after the first child turned five.

Husband buys family home using compensation pay out

The husband purchased a family home. He paid for it with money from a compensation pay out (about $200,000), loans from his relatives totalling $16,000, a bank loan of $20,000 and his savings. The wife contributed $10,000 from her savings during the marriage, about $5,000 of which she had when they began living together.

While they were married, the husband used his wages to support the family, meet household bills and contribute to savings. The wife took care of the children most of the time and was the homemaker.

After separation, the husband cared for the children most of the time as a result of parenting orders made by the Family Court. According to these arrangements, the children mainly lived with the husband, but lived with the wife each alternate weekend, one overnight during the week and one half of school holiday periods.

The husband did not receive any child support payments from the wife following their separation.

Trial judge gives 55 per cent of the marital assets to husband

After the couple separated, a property settlement was made which gave 45 per cent of the assets to the wife and 55 per cent of the assets to the husband.

The husband appealed against the property settlement orders of the court and asked that 30 per cent of the assets be given to the wife and 70 per cent of the assets be given to himself.

It was up to the court to decide first, whether to allow the appeal and secondly, whether the husband's share of the assets should be increased.

case a - The case for the husband

case b - The case for the wife

  • I funded almost the entire cost of our family home, even using all of the $200,000 compensation pay out I received before we began living together
  • I also raised additional money to buy the family home.
  • In addition to working full time and supporting the family financially, I maintained the home, helped with raising our children and helped with household chores.
  • Since our separation, even though I care for the children most of the time, I have not been paid any child support.
  • I understand that our financial and non-financial contributions were considered equal while we were living together. However, this should not have eclipsed my much greater initial financial contribution to buying the home or the financial contribution to raising our children since we separated.
  • I believe that the court's decision was plainly unjust and inequitable.
  • In addition to working full time or part time for over half of the time we lived together, I did most of the housework and cared for the children.
  • I do not have qualifications to get a well-paid job, so I don't have enough money to pay child support.
  • Since we separated I care for the children some of the time.
  • I understand that our financial and non-financial contributions were considered equal while we were living together.
  • My husband's greater financial contribution to buying the family home and to supporting our children has already been taken into account by the trial judge by awarding my husband a greater share of the marital assets.
  • I believe that the result was just and equitable.

So, which case won?
Cast your judgment below to find out

Vote case A – the case for the husband
Vote case B – the case for the wife

Rita Fisher
Family law
Stacks Law Firm

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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