The end of a marriage inevitably leads to a carving up of assets of spouses so that each spouse is able to financially move forward
independent of the other. It is the role of the Family Court to assess the spouses’ respective contributions, place a value on those contributions and then come to a view as to how to “carve up the cake” after adjusting the assessed contributions in light of a number of considerations commonly referred to as “future needs”.

The carve up — bygone days?

Family Court Judges have a discretion as to how contributions made by spouses during a marriage are to be valued. A partnership
approach to contributions now appears to be favoured by the majority of those Judges. In the past Judges tended to place a greater value on financial contributions than on the homemaker/parent contributions. They treated business acumen/financial contributions as more valuable than the contributions of the homemaker/parent.

A common arrangement in many families is that one spouse is engaged in full-time paid employment whilst the other, traditionally the wife, undertakes most of the domestic and childcare responsibilities as well as part-time and (increasingly so) full-time paid work. Recent research has shown that the majority of spouses regard their property as jointly owned and, more importantly, regard this state of affairs as
underpinning the healthy functioning of their relationship.

Understandably, the Family Law Act (“the Act”) cannot and does not, however, provide a formula for valuation of contributions
(financial or non-financial). The ever increasing incidence of divorce and of second, or even third, marriages, means that the question of contributions made to assets held by a married couple and how to fairly value them in case of divorce assumes foremost importance.

Even-handed slice?

A relatively recent English case signalled the dawn of a new era in the Court’s approach and treatment of the heated question “When the candles blow out, how big is my slice of the cake?” The decision in that case challenged the historically “only if it can be measured” gender biased approach to the assessment of contributions to a family’s welfare.

It confirmed that above all, the role of the Court is to achieve fairness. Fairness grounded in equality and non-discrimination as a starting point. The “starting point” cannot and must not, however, be treated as a presumption of equal division. To do so would take us beyond the language and intent of both English and Australian law.
The recent approach of the Australian Family Court has reflected a partnership view of marriage. This has resulted in equality as the appropriate outcome of a decision-making process which goes beyond merely paying lip service to the concept of a joint effort vision of committed relationships. Next Page >