Property Cases

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Liza, I thought we might talk about some property cases today in general terms and and maybe talk about one or two cases that have been handed down over the years that still have an impact.

So when I'm talking about property cases or when you're talking about property cases, what do you mean um when we're breaking up the marital assets or de facto assets. So anything that you own, either separately or together, um, often need to be divided in a way is going to be suitable to both parties and um sometimes assets need to be sold but there's a there's usually a mechanism that's applied before people will in fact be able to divide their property

And that mechanism is that the one that we've sp spoken about previously, which is to do with um ident identifying the property pool and um looking at the contributions and the future needs of the parties and of course Is it in fact just and equitable to have the property settlement at all? What used to be the four step process is now the five step process because the first and the fifth step are really closely aligned, which is should we even be thinking about the first thing? That's right.

It's fair. Okay, all right. Well let's talk about some of the different types of cases we get. I know that we've done an episode before about short relationships, but without characterising the duration.

What sort of cases would normally see a fifty fifty split of all of the property? Okay, so you've got um with fifty fifty cases One of the most common myths is that parties will think that there's a that's a starting that no matter what their relationship is that they start with a fifty fifty split. That's not always A lot of judicial commentary in the cases that say we're not necessarily starting there so don't assume No. And it but it doesn't mean that you start at zero or a hundred either.

Bizarrely then quite often those same cases do kind of start from there anyway. Well I mustn't start from there, but why don't I? Uh typically a fifty fifty case might have um parties that have been living together for a long period of time. Yeah and are now retired. So I'm talking So a reasonable length of relationship. um fifteen, twenty, twenty five years, that sort of that sort of um time frame. Um

I think um I think the Queen Oh no, th that's just for your birthday, isn't it? I was gonna say, you did you do you still get the Certificate for your years of marriage. I thought you got a certificate fr somewhere for you know, if you get your twenty five years of marriage and fifty years of marriage. Well I've got one year to go till I get a shiny certificate then. But I'll I'll write you one myself. I've never heard of a certificate being issued by certain.

Maybe I'm getting it confused with something, but anyway. Mixing it up with the parole board hearing, are you? Uh I Ha ha ha. Probably. Um, the other types of things that you've got is, you know, if it's not so much a a long um relationship, it might be only a short period of time. But it might be that the assets that have been acquired um jointly are pretty much the same, that both parties earn a similar amount.

There are no children around, so there's and there's no adjustment in terms of future needs. So that's all about a contributions based. Yeah, so No, isn't it you're both chipped in the same stuff. You both got the same income or similar income. You've both. And then nobody needs anything more than the other at the end of it. So it seems fair to say It's a fifty fifty sort of case.

Sometimes if one party's brought more assets into the into the relationship, um you might think that it's more fair that that party gets the majority of the property pool, but that's not always the case. got children and the other party has been looking after those kids and has Has to continue to look after those children because that's a case where sometimes it might still be 50-50, even though on a financial contribution basis. Um one party outweighs the other.

In terms of their contributions, their finances. It may be that the kids actually will even that score for that p for those pe those um that couple. That's another type of case where it might be considered.

Um in a lot of cases though that we see it's not always fifty fifty. There's more of uh what we do find. That's sort of It gets very um close enough to fifty fifty where parties don't really care because of course, you know, when you when you're looking at what is fifty percent of of five hundred thousand dollar property pool?

And and then what is you know, what's that extra amount actually mean? What is that extra ten percent? What is that So That's often the conversations that you and I have with clients either during the court or the litigation process or post-separation settlement conversations.

Say, look, how much money do you want to spend to recover slightly less than the amount that you're gonna spend to recover going to course and having a fully blown fight with barristers left, right and centre, you know, doing all of the cross examination. Five hundred thousand dollar property pool. ten percent of it that you've each spent. So that's twenty percent of the pool that you've given away to Субтитры сделал DimaTorzok Plenty of times.

Rydyn ni'n ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud. And it might think, Crikey, I don't really want to give And speaking from a a non mathematician and um and a lot of people out there, if you said, Rideo, the property pool is seven hundred and eighty thousand One party is to get um say three hundred a This is where my math is going to get tested. I should have done eight hundred let's go eight hundred thousand. This is this is why um lawyers aren't great.

So say you've got an eight hundred thousand dollar property. Um and we know that fifty fifty true fifty fift fifty fifty is four. Um sometimes it might be four hundred and ten thousand to one party and three hundred and ninety thousand dollars to party the other party. Now that in a lot of people's minds is close enough to a fifty fifty split. So it's still taken we we still would classify. When you go to write it down in a form, of course the That you use is going to be different.

Um fifty one percent or forty nine percent or whatever the case may be. But this is where we say to people when you might hear your lawyer say to you, Don't get caught up on the percentage, because when you look at it from a real term from real term. We still would call those sorts of cases fifty fifty, even though technically it's not exact Five minutes quite.

It might be one or two percent differential or something like that. But and of and of course when you're sending through court orders for approval by the court, then the registrars that look at those on a consensus. They're not ev they're not allowed by law to make them unless they consider that arrangement to be just and equitable. So if you do get the seal of the court on those orders that you have agreed, even if you might have ground your teeth together.

Um if the courts approve them then they are in the range that you could have ended up with anywhere. Yeah. So don't lose too much sleep over that. And I I guess there's a pragmatic thing as well because it's quite rare that you will end up with a property pool that consists solely of one your pile of cash in a bank account somewhere, just one amount of money.

It's very often tied up in different things. So, you know, you've got imbalances in superannuation. You might have a piece of real estate where you've got, you know, several hundred thousand dollars of equity, but also mortgage. One of you wants to keep the house, one of you is desperate to keep hold of all of your super. So it needs to be structured in such a way that works. And sometimes that could mean that your fifty fifty deal that in theory might be appropriate.

It's probably better to have a a division whereby a person Mae'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio. Forty nine fifty one. Well it's still just an equitable. And it particularly with things like businesses, they can go on and Anybody. Clearly not as as you can tell I couldn't even work out the fifty fifty of seven hundred and eighty three. It's all good. Well we're not accountants but we often refer people to accountants.

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All right, so that's a typically a fifty fifty case then is one where the contributions have been broadly equal. in a family law context that can mean one person might have been the primary breadwinner, the other person home care and carer for the children, but overall their contributions in a family law context. And then there's no necessity for an adjustment. So just touching b briefly on those adjustments. Those are things like how old everybody is, whether anybody's got any illness.

Who's looking after the children? So if there's a dip you know if there's a an appreciable difference between the other thing, but it's a where somebody's at in life compared to the other person, then you might have to spend a bit of time But if they're equal age people with no responsibilities to children of the relationship with equal earning capacity, There really probably wouldn't be a need to adjust beyond that.

And often um as you get older there's everyone's got ailments of some sort. So Yeah, yeah. Um you're talking about the just an equation. Ne like the need for it to be a just and equitable split. Yeah. Um, that case the parties were married for a a long time. The wife. quite disabled and was needing care quite But despite all that. More of a I think the length of the marriage or relationship is really going to take is is going to have a big

Yeah, and and even though I th there are this case law out there saying that contributions are not so much eroded. Initial contributions are not so much eroded. But the weight that is given to that. somebody who comes into a relationship with a lot more money, but it's a very long relationship. Yeah. The benefit of them having done that, they they kind of lose the ability to I do. I I'll let finer legal minds and mine um thrash through those. And I think there's a common misconception.

Um the amount of clients I have coming to me that says I deserve seventy percent. I've done so much more. Often it's the person. Either they believe in the they've contributed or they've wasted their life being

And I say wasted their life because that's what they a lot of people when they're when they're separating, they feel like, Oh, what have I done? I've only raised the children and I've I haven't had these opportunities to go and make some money and earn a living and generate some super so they feel like they've wasted, you know, their their All for the benefit of their o the other side, the other party who's now said, See ya later, I'm gonna find a newer model.

Um you can tell I've had a few of those inquiries lately. Um and um or then you've also got the other side of the equation, which is the party who has um who sees it from their perspective, which is All the money into this house, I've paid the mortgage. Um roofs over the heads of everyone for all this time, and I'm entitled and to this 70% or more than 70% split.

Arithmetical calculation of here's all the aggregation of the money that's coming from my salary, my wages, my earnings over this twenty year marriage, and here's yours. Mine is Quadruple your own. That's what I I get that quite a fair bit where they come in with a with a spreadsheet. I love the Excel spreadsheets that's set out um and have the comparison of the incomes over the years as if it's a

strict mathematical equation. It's not. And it's not. Because judges were usually loy uh lawyers once and they're probably not as good with the maths either. That's what they need their associates to try and work it out. Oh well this th there is also the other side about the contributions to the welfare of the family, which is you know, it's spelled out under section 794C if you're married or 90 SM4C if you're de facto if anybody gets bored and can't sleep at night. It talks about contribution.

Um that are non fine. In this way it says the contribution made by a party to the marriage, to the welfare of the family, constituted by the parties to the marriage and any children of the marriage. Including any contributions made in the capacity of homemaker or parent. So it's spelled out in the legislation there in the law that governs what must we take into account as a contribution.

So you things that you do looking after things at home, things that you do looking after the kids, um, but but also of each other as well, you know, that matrimonial or relationship support that you give. in taking care of the home. Those are all valid contributions too. Over a long period of time, that could be quite you know substantially greater contributions to the welfare of the family made by that one person, you know, the person that hasn't Yeah. They could be.

I I often we see largest differentiation between splits. So a seven. They'll include cases where there's a net worth of the property pool because a lot of the time um because in real dollars, you know, you you think about someone who's worth say ten million dollars And here goes my maths again. Ten percent of that is still a hell of a lot of money. I'm not even gonna like Did you say ten million dollars? Ten percent off ten million dollars.

It's okay. No, no. I look maths are bad, but there's a calculator, so you don't have to do that. But the point though is that it's still a million bucks. It's still quite a substantial amount of money. And so there there seems to be um and in my experience a lot less of a focus on um you know, w being too concerned about what is whether ten percent um in the ordinary case sounds like a very low percentage split, you know, so it might be a ninety ten um case and you might think

Such a long relationship and wife did all this and wife did all that, but it might be for reasons that are it might be that the husband has. ventured into a particular business model and that business has done extremely well through through whatever reason, um, and there might be a a significant higher net well uh worth of that property pool, particularly if at the start of the relationship, even if it was a very long that business was already

It was already underway. There was that still a initial contribution but because of the size of it all time hasn't really had much of an opportunity to erode away those contributions. There's still If it was massively disproportionate may never in fact erode or or reduce the weight to be given to it to Yeah, all the I mean the the cases are pretty clear that um there's no distinction between a financial contribution um and those made on a homemaking base. That's right.

So the things that you do, and interestingly, the contributions to the welfare of the children of the marriage, they don't necessarily cease once the children turn 18. So you know, people can have a long marriage as you say and their children might grow up. But then you and you continue to do things for those adult children and even potentially grandchildren, which assists those children.

Those are contributions. Um it's in the capacity of homemaker or parent. It doesn't fall off the ledge when they turn eighteen and say, Oh, it doesn't matter. Of course, families have multiple children and they're all of different age rates.

It's not as though somebody's contribution for the children as soon as they finish uh finish their minority, as soon as they turn eighteen. Those are ongoing contributions to the welfare of I was thinking about um when you've you've got a a case where there's a large disparity. bigger again'cause ten million probably it's a lot of money, um, for most people. a hundred million dollars. We're talking extremely high Say we've got someone that's worth a hundred million dollars.

yw'n yw'n yw'n yw'n yw'n yw'n yw Well, yeah. Um Reinhardt, no. So Oh you're talking about a real case. Um, no, in terms of um so say for example you've got um one h like a a party that's worth a hundred million bucks twenty years ago. Hundred billion bucks. Hundred much hundred million bucks twenty years ago. And now They're probably worth

Or it might not have gone up that much. The point is that what I'm trying to get at is that How does the court, does the court put a dollar figure or not so much literally put a dollar figure on that initial contribution? um of and that continued contribution of the other other party being the homemaker. Now the point you ra made before was that the court doesn't really differentiate

Um they just take it as being a contribution. But in a s in the case where there's You've got someone that's worth a hundred million bucks to start off with. Yeah. Raise the raise the kids. Um, they're doing well. She doesn't have to go off for herself because she's been a homemaker for most of her life. How would the court do you think treat that? Because ordinarily you might think, Okay, well it's That's a huge contribution.

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And I I look I think the courts would still give a considerable amount of weight to that that disparity in contributions. So even after a couple of decades, it it it's really a platform argument, isn't it saying none of this other stuff would have been And that's still preserved as an asset and it's still ongoing.

The um that that Western Australian case I was mentioning, the Strain case, which that was mega millions to the point where I mean, these people spent as long fighting over their money They're in court for years. They call for twelve years. Yeah. Pin your ears back and start weeping that it wasn't your client here, but they spent thirty Goodness mate, that's a that's a fair few hours. But it's over twelve years. how many hearings. And ultimately there was an a an order made

spousal maintenance claims of, you know, north of eighty and ninety thousand dollars a week and things like that. So Um when you get those kind of big money c yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r Yeah. Crazy. That's right. They had a twenty four year relationship of which half was in court. Yeah. But um in that but in that case I think that did generally sort of preserve the husband's I guess I guess what I wanted to basically Yeah.

Um what you and I think is a massive initial contribution isn't always going to be Forward three hundred thousand dollars ten, twenty years ago, it's probably not going to be treated like those multi million dollar. Do some Googling and go, Oh but this fellow he made You'll read it, you'll say you'll Google something. Big contribution at the start of the relationship of of start of long relationship.

um whereby, you know, husband in in that case particularly, um will get um the majority of that property pool. That's more of the exception. Yeah. divvy up between them and and I think he got thirty eight and she got eleven, but she'd already had thirty. He got more of the assets. Yeah. But I guess um I often from from my perspective the time who think that they're a hundred thousand, fifty thousand, three hundred four hundred thousand even contributions. Yeah. It isn't unless it is huge. Early.

in in sort of society generally, you think about how much it costs to buy Well how far three hundred thousand dollars will get you and even rolling that back a decade if you're together. Yeah, ameliorated by all of the other contributions. Yeah, so those sort of those sixty forty type seventy thirty cases, yeah, where it's you know loaded on one side.

Very often it's not so much going to be the contributions that drives the difference, but the needs of the party. Very often that means like, you know, little Johnny or little Jenny's going to be spending more time impinge upon you. have to but sometimes it can. This is an old you know, this is a piece of legislation that's been kicking around since We were talking in an earlier episode. Who has the w who has the care for the children? Considering a needs adjustment.

Mae'r pethau'r pethau'r pethau'r pethau'r pethau'r pethau'r pethau Because of the health of somebody. Uh and that can kinda cut both ways, can't it? Somebody who But it's not life threatening. Then they are going to need more money over their life. Sorry, they're like remaining like periods to be able to see mm. They will. But the key to that is that non life threatening So if you've got terminal cancer, um if one of the party has terminal cancer

Mm. Which probably could have given pause to think about should we have reinvig reinvigorated the litigation where the medical evidence? Um so um when you're thinking about the It's not just um It it's you might think to try and bolster your case by saying I need all

But just remember how far does that what does that actually mean? Does that mean that you you need all this um money on all these expenses because your treatments are so high like the treatment costs are so high? But what does that mean for your life? if your life expectancy is quite low, f whether whether it be cancer or otherwise, um, it may mean that, um you're th there will be less of an adjustment. around to en enjoy those the fruits of um of that action.

Yeah. Uh uh there are other things as well. Th look, we live in a a a world where family violence is a bit of a specter in the corner of most family law cases these. There's a famous case Kennan and Kennan where the courts even made an adjustment in the financial

the perpetration of family violence over a number of years, which made it much harder for I think the wife in that matter to uh be able to earn because she was subject to the domestic violence. So that can be a factor too that's taken there's a case we call it a rob and rob case, which is where this day and age especially, you've got a lot of blended families and where Mum might have children from a previous relationship and the um husband uh the new husband

looks after children, treats them as his own, cares for them, um, financially provides for them. That f that person, that husband is under no obligation The court will take that into account and say, well, that's an addition. But not in every case. I mean you you walk into a cause as I did earlier this week thinking

This is how this is going to go. The the facts are very obviously like this and and halfway through the the court the judges sort of saying all the words that we we we were expecting myself and the counsel that I briefed for the day. Think great, yep, this is going to give the outcome that we were thinking of and then comes back a little bit later in the afternoon and kinda reverses what she said. Male or female, and um yeah, you just never know. It's so very nuanced.

We should do a whole episode on that. the way you think it's going to work out versus what actually happened on the day. Because I think um perception and reality is are two totally different things when it comes to family law, especially once you step into the courtroom. I often say to people there's no such thing as the unwinnable case. Mae'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n.

There'll be a piece of evidence that doesn't appear in anybody's material that the judge is interested in and it's not there and it turns out to be pivotal. It might be an absolute red herring. Everybody then spins their afternoon wheels around looking for this you know irrelevant. apparently super important piece of evidence. And suddenly the eyes off the prize and the the judgment's handed down in a very clunky kind of way.

Not yet. I'm not I'm certainly not having a go at any judges in relation to that because sometimes the nature of the evidence is really sketchy as my

Okay, so other things that might impact upon who gets what would be this uh this other thing that's not property exactly, but it's financial resources. What might that include? Typically I'm thinking about somebody who might have So if you have a husband or a wife who's going to be We all know, sitting around this table and sitting around. We all know that that person is a very good thing. Af as it's a discretionary trust.

That's why on the One one of the questions on the application for consent orders for deals with And that's where it's an appropriate spot to put because it doesn't necessarily form part of the property. Some judges may take the view that in a particular case it should be included. Particularly where I think if the trustee Yeah. I mean, yeah. Yeah, if you have the control over. then it's more than likely to be treated.

Whether it's really property because if somebody controls But it it does it does complicate things when there are um say for example you've got a corporate trustee Uh and that director of that corporation might in fact be completely unrelated to yourself, it does really complicate the situation because what that Yeah. uh this little um means of of uh financial assistance. reasoning behind if you're If you've got...

other benefits paid for for you on your behalf. So it's that sort of stuff where, you know, you might have You you might be a Accommodation paid while ever you're that sort of thing. So it's taken as a financial resource as Some industries, mining industries, engineering where people are working remotely sometimes the accommodation It goes back a little... almost twenty years now, but Telicum White The wife was named as a beneficiar.

But the mum was still fine, she was compass mentis. And so whilst the husband was trying to say, That's a financial resource of the wife, she's going to receive a substantial inheritance. You the courts turned around and and and said, and it went I think went to the full court, uh that that the the notion that the wife was going to receive a benefit under the will.

At that moment in time it was just an expression of intention and th the the mum could change her mind, she could freely alter or revoke that will. Therefore it didn't exist as a as a financial resource to the wife. And until such time Somebody passes a little bit. than being referred to in a will. Well, the in-laws isn't necessarily...

Even if that person does lose capacity, say for example, um that they've made that will, because as we uh most people um should if you've got assets or kids or both. um you should have a will and that if you and and when you're making that will once once you've made that will, your lawyer would have told you You don't have to give reasons. You can you can just donate it all to charity. You can one day just wake up and go If you want to be capricious you can be.

This isn't a podcast about the Succession Act, but we both know. That's right. So then when you um you know, until such time that that person actually dies or becomes change their will anymore. They might have lost their marbles, things like that. And that's such an opportunity for um the other party to say, well, well the person who's trying to say that they're they're not necessarily going to get there.

I'm not pro I'm not going But I could certainly understand how somebody might get legal advice that says something along the lines of look Making it. But then as you said before This is not legal advice. This is purely discussion on the list. Just having a shut. Um and in terms of Even even t in terms of challenging the will, you know. the court will the court that hears that challenge will probably No bearing on

are saying in your family law case. They're to two totally And so I think that in terms of Anticipation. Or if you're on the other side of that, you try absolutely clearly to make sure that there's some kind of agreement that was there behind.

Well that that's just one of many it just gives you a kind of an illustration that every case is so very different. Uh And the seventy thirty case, the sixty forty case, yours might fall easily with one of those or you might very well be a fifty fifty, but so get some early legal advice. Try and push the sticky stuff uphill if you get advice to say this is where we're going to be able to do

Get a deal done and get it done fairly early. So look we're about out of time for this episode. So I'd like to say thank you very much for listening to Liza and I on Split Happens, the Divorce Down Under Podcast, and tune in again.