Clients sometimes ask us…
“Is my spouse entitled to half our assets?”
In our experience, possibly from what they hear in the media about Hollywood divorces, people often mistakenly believe all separating couples must split their property 50:50. There is nothing in Australian family law which says each party will receive 50% in a property settlement by way of right. There is no presumption at law nor is there a mathematical formula applied. Instead, each case will be determined (or negotiated) on a case-by-case basis.
The recent case of Elford & Elford  FamCAFC 45 shows how wrong a party can be to assume they are entitled to a share of their spouse’s property, just because they were married.
In that particular case, the parties had been married for about 10 years. During the marriage, the husband won approximately $600,000 in the lottery. The wife claimed she was entitled to a share of the lottery on the basis the winning ticket was bought during the marriage and it was therefore a “joint contribution”. The husband claimed he purchased the ticket from his own personal money and had kept the winnings in his personal account. Therefore, he claimed the lottery win was not a joint contribution but one made solely by him. The judge agreed with the husband and gave the wife approximately 10% of the total property pool (not the 32% she was seeking).
Another recent case of Chancellor & McCoy  FCCA 53 also shows how important it is to look at the specific circumstances of each relationship and reminded parties there is no automatic entitlement to an alteration of property interests even in very long relationships. In that case the judge considered a de facto relationship of 27 years. The applicant wife sought orders for property settlement that would see a transfer or payment of money to her of an unspecified amount. However, the judge found that because the parties had kept their finances separate throughout their relationship and there had been no “intermingling” of finances (indeed, they had not bought any property together or shared bank accounts), the wife was not entitled to a property settlement and each party ultimately kept whatever was in their sole name.
It goes to show just how important it is to look at the contributions made by each party and how they conducted their finances during the relationship. The specific circumstances of each relationship can be very important and as the above cases show, can make a significant difference to each party’s entitlements at law.
For a newspaper article about the lottery case abovementioned, click on the following link: https://www.9news.com.au/national/2016/04/05/11/28/divorced-man-to-keep-entire-lotto-win-despite-decade-long-marriage
If you or someone you know needs expert advice from our specialist team of family lawyers, phone us on 1800 600 664 or complete the contact form on this page.
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