Kouma & Kouma [2023] FedCFamC2F 261

Kouma & Kouma [2023] FedCFamC2F 261

Background Details

• Type: Marriage
• Duration: Married in 1990; at the hearing the parties were still living separately under one roof. A marriage of about 30 years or more.
• Ages: Husband 60, Wife 59 at judgment.

Children

• Children from Relationship: Three adult children, aged 31, 28 and 22.
• Children from Previous Relationships: None mentioned.

Initial Financial Positions

• Husband and Wife: Both started the relationship on equal financial footing, with no significant assets or debts at marriage. No details were given on cash, property, or superannuation at the relationship's commencement.

Contributions During the Relationship

• Financial Contributions:

  • Both worked and contributed financially; however, specific amounts and asset contributions were not detailed.
  • Husband made various business ventures, including purchasing land and constructing a home, despite some being unsuccessful.
  • The husband received a compensation payout of approximately $40,000 in 1999.

• Non-financial Contributions:

  • The Wife worked as a homemaker and managed childcare, especially when the Husband travelled overseas.
  • Wife also engaged in business ventures, including a shop setup but with unspecified financial success.

Post-Separation Contributions and Actions

• Financial Contributions:

  • From October 2020, the Wife began paying the full mortgage.
  • Husband continues to make smaller contributions towards a line of credit and some utility bills.

• Non-financial Contributions:

  • Both parties continued living separately under the same roof until the court's judgment.

Current Financial Position & Property Pool

• Current Assets and Debts:

  • Husband: Interests in Super Funds 1 and 2 and a self-managed super fund; with a notional add-back of $130,000 he held $136,416 of the $221,661 superannuation pool. Obliged to contribute for various debts including ANZ credit card, Company V loan, and ATO debt.
  • Wife: Details of her assets such as personal superannuation and other personal property were not extensively provided.

• Real Estate:

  • B Street, Suburb C, NSW property is jointly owned, to be sold at public auction.

Assessment of Contributions and Future Needs

• Contributions:

  • Both parties were found to have balanced contributions, both financially and non-financially, with no adjustment needed based on contributions.

• Future Needs Adjustments:

  • An equal division of 50% each was deemed just and equitable. Given both are employed with similar incomes and no responsibility for minor children, no further adjustments were warranted.

Unique Aspects

• Sale of the B Street, Suburb C property was ordered, with the proceeds to be divided after settling debts and specific allocations to both parties ($26,189.20 to the Wife, $75,808 to the Husband) and an equal split of remaining proceeds.
• The court notionally added back $130,000 to the Husband's side of the superannuation pool and equalised superannuation through the cash payments from the sale proceeds rather than a superannuation split.

Summary

The court's orders facilitate a 50/50 split of total assets after a considered approach to contributions and debts. The property's sale ensures adjusted equity distribution while accounting for cash payouts to address superannuation imbalances due to lack of full transparency on the Husband's part. The decision respects the long duration of the marriage and the contributions made by either party over the years.

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 in s 79(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 79(4)(ca)) and on their current and future circumstances (s 79(5)(a)), and any material wastage of property (s 79(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.