When the Courts are asked to make a determination in regards to dividing matrimonial assets, the courts use a number of steps:
- Firstly they identify and assess the assets and liabilities of the matrimonial pool;
- There is a consideration of contributions made by the parties, being both financial and non-financial, direct and indirect;
- The next step relates to “section 75(2) factors” which include a non-exhaustive list of further considerations such as the parties’ ages and health status, whether a party cares for children, and the future needs and earning capacities of the parties;
- Finally, the Courts are required to make an order which is appropriate and fair, also known as being “just and equitable”.
The case of Morrison & Morrison  concerned parties who separated after 23 years of marriage and who had a 14 year old child. The husband was the primary breadwinner however the wife had care of the child throughout the marriage. The child spent no time with the husband post separation.
The asset pool was $920,000 and the husband had the greater earning capacity working as a public servant, the wife worked in a part time capacity. Accordingly there was a large disparity in their earning capacities.
During the hearing of the matter the husband was suspended from his employment and subject to criminal proceedings in which he was facing a custodial sentence. In this respect the wife had no prospect of receiving any child support in the future from the husband.
The Court found that in considering the wife’s future needs, these were directly affected by the husband’s potential goal sentence and inability to pay child support in the foreseeable future as well as his nil involvement in parenting the child of the marriage.
Ultimately the Court made adjustments in the wife’s favour and she was entitled to 62.5 percent of the asset pool due to her care of the child and limited earning capacity. Although the outcome of the husband’s criminal proceedings could impact on the future earnings of the wife, the court was required to make orders to finalise a property settlement because it was just and equitable to do so.
At Everingham Solomons we have the expertise and experience to assist you with a property settlement and any other family law matter because Helping You is Our Business.
Click here to learn more about Sophie Newham.