Tuesday, April 5, 2022

Thinking that on a marriage breakdown the wife 'automatically' gets 50%? - wise up sucker**

Previous posts have considered an array of issues that arise at the intersection of the rules surrounding asset protection and family law.

The decision in Hsiao v Fazarri [2020] HCA 35 provides another interesting perspective in this regard.

Briefly the factual matrix involved a relationship between spouses, who while they had been in a de facto relationship for around 4 years, were only married for 23 days.

The total wealth of the husband was around $12M. The husband was required to pay the wife around $100,000, as well as contributing $80,000 to her legal fees, bringing her asset pool to around $430,000.

The court relevantly confirmed:
  1. The relationship as a whole was of a modest length (ie even including the 4 year de factor relationship), with the wife's non-financial contribution to the acquisition, conservation or improvement of their property also modest, if not nominal.
  2. There was nothing to suggest that the marriage had had any effect on the earning capacity of the wife.
  3. Furthermore, there were no children whose interests stood to be affected by any alteration of the parties' interests in property.
  4. Despite some arguments to the contrary, it was open to the trial judge to decide that the wife did not make any substantive financial contribution to the asset pool, and therefore had no particular claim to it.
  5. The right a party has on appeal is to have a review of whether the primary judge's discretion to make a property settlement order had miscarried (see House v The King (1936) 55 CLR 499) - an appeal can not be used to try to make a case that a party chose not to make at the trial.
  6. For clarity, the court also confirmed that the Family Law Act permits property settlement proceedings to be continued by or against the legal personal representative of a deceased party to a marriage (noting that this issue was not directly relevant in this case).
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** for the trainspotters, the title today is riffed from the Pop Will Eat Itself song 'Wise up sucker'.

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