Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 11 June 2016.
John and Jane, both in their 50s, got married in 2009.
They each owned a house before they commenced their relationship.
Shortly after they married, they sell their houses and purchase a home to live in together.
During each year of their marriage, John earned an income of $100,000 and Jane earned an income of $50,000.
In 2011, their relationship breaks down but they remain living under the one roof.
John and Jane physically separate in 2013 and later that year, John is diagnosed with lung cancer.
In 2014, Jane commences action in the Federal Circuit Court, seeking family law property settlement orders.
John is admitted into palliative care in 2015 and passes away shortly thereafter.
Because Jane’s application was commenced prior to John’s death, Jane has the ability to continue action against John’s estate, which is represented by his executor.
The parties are unable to resolve the matter amongst themselves and the matter proceeds to a hearing.
At the hearing, Jane alleges that during the relationship, John was abusive and aggressive towards her and claims that his behavior caused her to suffer a lack of confidence that has affected her income earning capacity into the future.
Jane also alleges that during their relationship, John secretly withdrew funds from their accounts.
John of course, is unable to give evidence in reply to Jane’s claims.
Nonetheless, the barrister acting for John’s estate successfully cross-examines Jane, and the court ultimately finds that her evidence is “simply unsatisfactory on every level”.
The court rules that during their short marriage, John made overwhelming financial contributions and superior “indirect” contributions by way of significant renovation and maintenance to their home. The court assesses contributions at 70% to 30% in favour of John.
Being deceased, John was unable to seek any further adjustments by way of “needs” and a 5% adjustment was awarded to Jane in this regard.
The court ultimately finds it “just and equitable” to order that the pool of assets be split 65% to John’s estate and 35% to Jane.
