Family Law: Financial Provision on Marriage

Main statute

Order where one party has to pay money over certain period of time?

Section

Order where one party is to pay specified amount of money in one (or instalments)

Section

One party transfers share/ownership over to other spouse

Section

Order where home is sold

Section

Order used to cut all financial ties (except child maintenance) with spouse

Section

Is there a presumption in favour of making the order

Case

Other types of property adjustment order (as below)

Order that defers sale until a triggering event occurs

Allows one spouse to live in house for rest of life until death, remarriage, or cohabitation

First consideration

Case that said it is only first NOT overriding consideration (case)

Section for statutory factors/checklist

s.25(2)(a)

Husband lied about actual income, is what is reasonably foreseeable that is considered (case)

Wife going to inherit, court does not take into account what has not yet been inherited (case)

Once died will be accounted for, but can be condensed (case)

- Kept finances separate - Wife earned more through bonuses - Different earnings and shortness of marriage so shouldn’t be divided equally

Earning capacity is not an asset

Brought high value shares to marriage but kept them separate , non-marital asset

Straightforward division of assets in a dual income marriage

s.25(2)(b)

Yardstick of equality, non-financial contributions are just as valuable to avoid discrimination of homemaker

s.25(2)(c)

Standard of living actually enjoyed DURING marriage (case)

s.25(2)(d)

Concept of non-matrimonial property (case)

Where pre-marital cohabitation that leaves seamlessly into marriage will be matrimonial property (case)

s.25(2)(e)

s.25(2)(f)

Wife awarded 54k, committed suicide later, husband sought to have award reversed, court said no as was not just wife's money, however reduced entitlement

s.25(2)(g)

Conduct must be gross to be taken into account

Prostitutes and cocaine not conduct as wife should take husband as she found him

Attempted murder was determined to be conduct

s.25(2)(h)

Common law principles

Stellar contribution case

Stellar contribution requires a seed of genius

Stellar contribution must be gross and obvious, inequitable to ignore

Compensation principle, wife gave up career to look after home

Stellar contribution must induce a gulp not a gasp

Wealthy husband mostly inherited, less than half of assets were not matrimonial property

Source of the asset that matters, transferred 80 mil into wife's name

Pension sharing types