Everingham Solomons

Helping you is our business

  • Our Firm
  • Our Services
    • Business & Commercial
    • Property law
    • Wills & Estates
    • Family law
    • Employment law
    • Dispute Resolution
    • Court matters
    • Agency services
  • Our People
  • News & Media
  • Careers
    • Current Positions
    • Law Bursary
  • Contact

If your spouse had a reduced life expectancy, would you get more in a property settlement if you separate? – Sophie Newham

May 14, 2016 by Sophie Newham

SKNClearly there is no way of determining how long you will live for. Nonetheless, in the matter of Fontana & Fontana [2016] FamCAFC11, the full court of the Family Court was asked to consider whether a husband’s potentially reduced life expectancy, caused the wife to receive an adjustment in her favour, thereby providing her with a greater share of the matrimonial pool of assets.

In property proceedings, adjustments in one party’s favour take into consideration not only financial and non-financial contributions made during the relationship, but also what are referred to as “section 75(2) factors”.   For instance, the age, health and “future needs” of the parties to the marriage may be relevant factors.

The facts of Fontana & Fontana were as follows:

  • The matrimonial pool of assets was valued at $1.72 million, which comprised mainly real property and excluded superannuation assets;
  • The husband was 49 years of age and the wife was 43 years of age;
  • The parties were married for approximately 15 years;
  • There was one child, aged 15 at the time of the proceedings, who was in the care of the wife;
  • The husband suffered from diabetes and renal failure, and required dialysis three times per week, as well as being on a waiting list for a kidney transplant;
  • In respect of income, the wife had capacity to earn over $200,000 per annum and the husband received income protection insurance worth $150,000 per annum

At the trial, the court awarded the wife 56.4 % and the husband 43.6% of the net pool. The trial judge gave reasons for making an adjustment in the wife’s favour as follows:

“I am satisfied that the husband’s needs, whether he has a transplant or not, are likely to subsist for a shorter time than are the wife’s needs. With some regret, this is a matter that I must take into account in the wife’s favour.”

The husband appealed the division based on the trial judge’s adjustment made on his reduced life expectancy and his special needs, which the trial judge said would “subsist for a shorter time”.

On appeal, the full court determined that the trial judge was incorrect in giving weight to husband’s life expectancy in the circumstances that the judge had no ability to make a conclusive finding on the husband’s life expectancy.

The court found that a 4.5% adjustment in favour of the wife was made in error, and accordingly the property orders in the original trial were set aside.

At Everingham Solomons we have the expertise and experience to assist you with property matters because Helping You is Our Business.

Click here to learn more about Sophie Newham.

Share this:

  • Click to share on Twitter (Opens in new window)
  • Click to share on Facebook (Opens in new window)
  • Click to share on Google+ (Opens in new window)
  • Click to share on LinkedIn (Opens in new window)

Related

Family

Recent Posts

  • Two children and a long relationship but was it a de-facto relationship? – Sophie Newham
  • Final Inspections – Suzanne Hindmarsh
  • If you die from a workplace injury, can you also claim compensation for permanent impairment? – Libby Campbell
  • Serious Consequences For Employers Who Dodge Superannuation Payments – Terry Robinson
  • Buying & Selling Property, What happens on settlement day?- Katie Cook

Categories

  • Uncategorised
  • Business
  • Criminal
  • Employment
  • Family
  • Property
  • Superannuation
  • Wills & Estates
  • Personal Injury
  • Business Law
  • Commercial Litigation
  • General
  • Workers Compensation

Copyright © 2016 Everingham Solomons: Helping you is our business

Conditions of Use

This website is owned and maintained by Everingham Solomons ("Eversol"). By using this site, you agree to the terms, conditions, notices and any other requirements contained within these Conditions. Eversol reserves the right to amend the Conditions at any time without prior notice. Any communication you send over the internet is part of the public domain and may be accessed by any member of the public. It is recommended that no sensitive information is expressed in this way. This site contains links to other internet sites, which are maintained entirely by independent third parties. These sites are not under the control of Eversol and Eversol is not responsible for their contents. You enter them entirely at your own risk. Further, Eversol does not guarantee that access will be available to these sites. Under no circumstances will Eversol or any of its employees be liable for any direct, indirect, consequential, incidental and/or special damages or loss of profits whatsoever. The information provided on this website is not and should not be relied upon in lieu of specific legal advice from a legal practitioner in relation to your own set of circumstances. Neither Eversol nor its related entities or employees accept any liability arising from any person or persons relying on any information contained in or linked from this site.

© Everingham Solomons

Privacy

Everingham Solomons Solicitors is bound by the National Privacy Principles contained in the Privacy Act 1988 (Cth). This Privacy Statement outlines how we handle your personal information.
THE INFORMATION WE COLLECT

We collect information including, but not limited to:

  • Names
  • Addresses
  • Occupations
  • Financial details
  • Identification documentation
  • Other relevant information that enables us to meet our legal obligations and conduct our business
WHY WE COLLECT PERSONAL INFORMATION

To enable us to meet statutory requirements, our legal obligations, conduct our business, and provide and market our services.

ABOUT WHOM WE COLLECT INFORMATION
  • Our clients
  • Potential clients
  • Our clients' employees
  • Our employees and prospective employees
  • Suppliers of other services including, but not limited to, other legal and financial services
  • Persons who we are legally required to record information on.
COLLECTION OF PERSONAL INFORMATION IS OBTAINED FROM
  • Personal consultations
  • Information provided by you
  • Information contained in forms and documents which you may be required to complete
  • Business records
  • Telephone conversations
  • Email messages
  • Information from third parties, such as medical reports and financial records and statements
  • Identification documents provided by you
USE & DISCLOSURE OF PERSONAL INFORMATION

We will use and disclose your personal information only for the purpose of providing our services to you, or for a related purpose including marketing our services.

We will use and disclose your personal information for the purposes of complying with our statutory and legal obligations when providing our services.

We may be required to disclose your personal information to comply with certain legal obligations, or where we are compelled to do so by law.

We may be required to disclose your personal information to ensure your safety, the safety of another person, or to prevent a threat to life.

Generally, the information provided by you is utilised to carry out your instructions and advance your matter.

TO WHOM PERSONAL INFORMATION IS DISCLOSED

Your personal information may be disclosed to:

  • Other companies or individuals who assist us to provide services to you, or perform functions on your behalf, such as other law firms, barristers and related service providers
  • Courts, tribunals and government authorities
  • Any other person or organisation to whom you authorise us to disclose your information. This may include organisations that provide financial or other legal services
STORAGE OF PERSONAL INFORMATION

We will take reasonable steps to ensure that the personal information we collect, hold and disclose is accurate, complete and up-to-date. Your personal information is held in both paper-based files and computer storage facilities. We have taken reasonable measures to ensure this information is secure and to protect your information from misuse, loss, unauthorised access or disclosure.

SENSITIVE INFORMATION

We may be required to obtain sensitive information. We will do so only when it is necessary to provide our services to you. We will use and disclose this information only with your consent, or where we are compelled by law to do so. This sensitive information may include details relating to a person's criminal record, religion, ethnic or racial origin or sexual preference.

GAINING ACCESS TO YOUR PERSONAL INFORMATION

If you wish to have access to your personal information, please email our Privacy Officer Monica Brooks, or call her on (02) 6766 1066.

OUR CONTACT DETAILS

If you wish to discuss this policy, update your information, or make a complaint, please email our Privacy Officer Monica Brooks, or call her on (02) 6766 1066. Write to us at PO Box 524 Tamworth NSW 2340. If you do not wish to receive any of our marketing or other material, please call us on (02) 6766 1066, and we will remove your name from relevant listings.