Family Law Act 1975

1194 Words 5 Pages
ASSESSING “SPECIAL” CONTRIBUTIONS PURSUIANT TO S 79(4) OF THE FAMILY LAW ACT 1975 (CTH)

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I INTRODUCTION

In distributing property, the Court must assess the parties’ respective contribution during the marriage under s 79(4) of the Family Law Act 1975 (Cth) to the extent that it is just and equitable. The scenario of “special” contribution arises where one party possesses a “special skill” which in turn results in a significant increase in the asset pool of the parties’ in a long-term marriages. Unfortunately, as highlighted in the case of Hoffman & Hoffman, and Field & Smith, the courts are reluctant to establish or acknowledge a legitimate guideline or legal principle for such “special” contributions. Ultimately, the extraordinary
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The argument surrounded the trial judge, Murphy J, in finding the parties to have made equal contributions during the marriage but making a 10% adjustment for the husband’s contributions to the business post-separation. On appeal, this highlighted the danger of valuing a “special” contributions over non-financial contributions like the role of home-maker and parent. Bryan CJ and Ainslie-Wallace J stated: A contribution by one party in the role of home-maker and parent …allows the other party …to pursue income and capital generation. I consider that this is what occurred in this particular marriage; the former contribution being made by the wife so as to allow the latter contribution by the husband. I do not consider the one to be more or less important (or “valuable”) than the other.

The case of Fields & Smith, did not create a presumption of equal contribution in long term marriages or ‘big money’ cases but rather clarified that no form of contribution, financial or otherwise, should contribute more weight than
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It gives a party an unfair advantage, where pre-defined marital roles like homemaker and breadwinner, prohibit a party from “specially” contributing and allows the other party to do just that. The old saying “What’s mine is yours” come to mind, the parties to a marriage contribute in different capacities for the benefit of the family and household and particularly in long term marriage, it would be folly to attempt to establish a “special” contribution that owes a greater weight. Courts should value “special” contributions in the context that one party was able to significantly contribute finically but that was only able to do so with the support of their

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