saraThere are instances whereby parents assist their children financially even when those children are grown up and have families of their own. Whether it be helping with mortgage payments, providing rent free accommodation, helping out with the groceries or an inheritance at the end, these may be significant from a Family Law perspective.

Parents usually don’t mind helping their children, but what happens when your child separates from their partner and they want to benefit from your generosity?

This was argued recently in the matter of Ross & Audley [2011]. The parties commenced cohabitation in 1986 and were married in 1987. There were 4 children of the marriage plus the wife had a child to a previous relationship who resided with them.

When the parties commenced cohabitation they lived rent free at property P, which was owned by the wife’s mother. In 1987, the parties moved to property C, also owned by the wife’s mother, and again rent free. The parties continued to reside at property C until 2011, when the house was demolished and another one built. During the time that the new house was being built, the parties resided at property T, also owned by the wife’s mother, and again rent free.

In 2004, the wife’s mother passed away and the wife received an inheritance of property C, a half interest with her brother in property T, a considerable share portfolio and antique furnishings.

The parties separated in 2008 and the wife remarried. The wife claimed that she should be entitled to 80% of the assets as it was her mother’s inheritance which provided much of the pool.

The husband argued for an equal split for many reasons but mainly that he had cared for the wife’s son from a previous relationship, he provided care of the wife’s mother in the 4 years leading up to her death, the length of the relationship, his earning capacity of working full time plus being the primary caregiver when the wife was in ill health, and his contribution to the care of the children when the wife left.

It was also argued by the husband that the parties were always aware that the wife would inherit from her mother’s estate and this is the reason why the parties never purchased their own real estate or shares. The husband also submitted that the inheritance was for the benefit of not only the wife, but him and the children as well.

Federal Magistrate Bender concluded that “whilst the husband argued the wife’s mother intended to benefit the family as a whole, I am of the view that the wife inherited from her mother because she was her mother’s daughter.”

In that regard, the Federal Magistrates ordered that there be a 75/25% split in favor of the wife.

When you are considering separating or have separated, and you have received financially from your parents, you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you. Helping You is Our Business.

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