The Facts
Couple were married for ten years and had two children
The husband was aged 39, the wife was aged 37 and they had been married for about ten years at the time of separating. They had two children.
When they started living together, the husband had assets of a total value of $226,000, while the wife had assets of a total value of $11,500.
The husband was employed at all times and the wife was employed until shortly before the first child was born, then employed part time after the first child turned five.
Husband buys family home using compensation pay out
The husband purchased a family home. He paid for it with money from a compensation pay out (about $200,000), loans from his relatives totalling $16,000, a bank loan of $20,000 and his savings. The wife contributed $10,000 from her savings during the marriage, about $5,000 of which she had when they began living together.
While they were married, the husband used his wages to support the family, meet household bills and contribute to savings. The wife took care of the children most of the time and was the homemaker.
After separation, the husband cared for the children most of the time as a result of parenting orders made by the Family Court. According to these arrangements, the children mainly lived with the husband, but lived with the wife each alternate weekend, one overnight during the week and one half of school holiday periods.
The husband did not receive any child support payments from the wife following their separation.
Trial judge gives 55 per cent of the marital assets to husband
After the couple separated, a property settlement was made which gave 45 per cent of the assets to the wife and 55 per cent of the assets to the husband.
The husband appealed against the property settlement orders of the court and asked that 30 per cent of the assets be given to the wife and 70 per cent of the assets be given to himself.
It was up to the court to decide first, whether to allow the appeal and secondly, whether the husband’s share of the assets should be increased.
Expert commentary on the court's decision
Appeal Court finds in favour of husband
In the case Pierce & Pierce [1998] FamCA 74, the Full Court of the Family Court determined that the appeal should be allowed.
The Appeal Court noted that there is an obligation on a trial judge not only to identify the relevant contributions of the husband and wife, but also to assess what weight they should be given. In this case the trial judge failed to assess these contributions adequately, or at all.
Specifically, he failed to give sufficient weight to the greater initial financial contribution of the husband and to his ongoing contributions post separation in caring for the children. Further, the trial judge appeared not to have had regard to the use made by the parties of the husband’s greater initial contribution by buying the family home.
In assessing the respective contributions of the parties from the commencement of cohabitation to the date of hearing as being 55% by the husband and 45% by the wife, the discretion vested in the judge had miscarried and therefore the appeal should be allowed.
Appeal Court recalculates asset split
The Appeal Court found that weighing the initial contributions of the husband and his post separation contributions with all other relevant contributions by both the husband and the wife resulted in an apportionment of their marital assets of 70 per cent to the husband and 30 per cent to the wife.
The court placed particular emphasis on the husband’s ongoing responsibility for the care and accommodation of two young children with little, if any, child support from the wife. This factor resulted in a further five percent adjustment of the asset split in favour of the husband, so that the husband received 75 per cent of the asset pool and the wife received 25 per cent.
Court not bound by parameters set by the parties to the property settlement
What makes this case somewhat unusual is that the Appeal Court granted the husband a larger portion of the assets than he had sought when he lodged the appeal.
In doing so, the court noted that it has the discretion to make whatever orders it finds to be appropriate and that it is not bound by the parameters set by the parties themselves.