Kaye & Tait [2023] FedCFamC2F 1590

Kaye & Tait [2023] FedCFamC2F 1590

Background Details

• Applicant: the de facto wife
• Respondent: the de facto husband
• Type: De facto relationship
• Duration: Approximately 8 years. Commenced mid-2012 and ended in May 2020.
• Ages: Not specified at judgment.

Children

• There are no children mentioned from this relationship or previous relationships.

Initial Financial Positions

• De facto Wife:

  • Minimal net value, some savings, a car, and superannuation.
  • In full-time study at the start of the relationship.

• De facto Husband:

  • Non-superannuation property valued at approximately $73,500.
  • Superannuation balance: $51,000.
  • Nominal equity (about $43,500) in the Suburb C property at the start of the relationship.

Contributions During the Relationship

• Financial Contributions:

  • The de facto husband paid for the deposit and purchase costs (e.g. stamp duty) of the Suburb C property and was primarily responsible for mortgage payments until 2016.
  • The de facto wife started contributing to the mortgage in 2016.

• Non-financial Contributions:

  • Both parties made non-financial contributions during the relationship, but specific details were not highlighted to differentiate.

Post-Separation Contributions and Actions

• Financial Contributions:

  • De facto husband's savings increased by about $120,000 post-separation without contributions from the de facto wife.

• Non-financial Contributions:

  • Not specifically detailed.

• Dissipation of Assets:

  • No specific mention.

Current Financial Position & Property Pool

• De facto Wife:

  • Non-superannuation property: about -$315,993, because she holds a 1% legal interest in a property bought with her new partner but is liable for half its mortgage.
  • Superannuation balance: $60,887.
  • Financial resource: $416,500 (49% of the Region O property), reflecting her expectation of a half interest in it.

• De facto Husband:

  • Non-superannuation property: $1,103,303.
  • Superannuation: $383,184.
  • Savings: Increased by approximately $120,000 post-separation.
  • Income about $265,000 a year, over four times the de facto wife's.

• Property Pool:

  • Total estimated pool: $1,231,380.

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed at 80% for the de facto husband and 20% for the de facto wife.
  • De facto husband's ongoing contributions after separation were significant.

• Future Needs Adjustments:

  • A 5% adjustment in favour of the de facto wife, so that she receives 25% overall, mainly because of the large disparity in income.
  • The court also weighed the support she has from her new partner and her financial resource.

• Final Division:

  • Superannuation: De facto wife to receive a superannuation splitting order of $50,130.
  • Non-superannuation: Cash payment of $200,445 to the de facto wife from the de facto husband, ensuring her 25% share.

Unique Aspects

• Significant disparity in income levels (de facto husband earns over four times the de facto wife's income).
• The de facto wife's potential future interest in the Region O property was treated as a financial resource rather than a direct asset.
• The court considered the financial support each party has from a new relationship.
• A conclusion that a cash adjustment was equitable, reflecting the increase in equitable interest the de facto wife may achieve in the future.

Conclusion

The division reflects recognition of the de facto wife's future needs and potential property interests, ensuring equitable adjustment in consideration of income disparities and financial contributions made during and after the relationship.

The law since this decision

This case was decided before 10 June 2025. From that date the Family Law Act 1975 (Cth) sets out the steps for a property settlement between de facto partners in s 90SM(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 90SM(4)(ca)) and on their current and future circumstances (s 90SM(5)(a)), and any material wastage of property (s 90SM(5)(d)). In Western Australia, a property case between married couples is decided under that Act in the Family Court of Western Australia. A case between de facto partners in Western Australia is decided under the Family Court Act 1997 (WA), which has not adopted those 2025 changes.