A recent article which appeared in the Sydney Morning Herald concerned a property case in the Family Court called Kane & Kane  FamCAFC 205 . The judgment overturned an earlier finding in which a trial judge had assessed a husband’s financial contribution to a long marriage more favourably, due to the husband’s skill in “selecting and pursuing an investment”. The investment significantly increased the value of the couple’s family superannuation fund.
Kane & Kane concerned a 30 year marriage. The husband was aged 61 years and the wife 48 at the time of the trial. The parties were able to reach agreement in regard to dividing some of their joint matrimonial assets qually, but they could not agree on the division of their joint superannuation which totaled the sum of $3.4 million.
Whilst still married, the husband had extensively researched and considered a number of investment possibilities for the couple’s superannuation fund. His wife did not agree to him purchasing the shares in “Company 1” however he went ahead and did so. The purchase price paid by the husband was $539,500. The value of the shares on “Company 1” at the date of the trial had significantly increased to $1.85 million.
Significantly, the funds used to purchase the shares came from the couple’s joint funds. Yet, the allocation of funds deposited into the superannuation fund itself was unequal and significantly favoured the husband.
At trial, the husband argued that due to his “special skills” in selecting and purchasing the shares in “Company 1”, that he was entitled to a greater share of the superannuation funds. He sought a split of approximately 66% in his favour.
As previously outlined this matter went on appeal. The court stated that the husband was not qualified nor an expert in share investments. The judge said that the husband’s skills “did not prevent losses in other investments which he allocated not only to his superannuation fund but also to that of his wife”. The judge also commented more generally when he said that “special skills will not always produce significant financial results”.
The appeal court found that the husband’s contribution to the superannuation fund was not to be disproportionately weighted in his favour when splitting the funds between the couple. The court ultimately found that it was not a just and equitable outcome to favour the husband and that the principle of “special skills” in relation to assessing financial contributions, was not a settled doctrine advocated by the legislation.
If you require advice in regard to any aspect of property proceedings or superannuation splitting, at Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
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