Villiers & Villiers [2023] FedCFamC2F 47

Villiers & Villiers [2023] FedCFamC2F 47

Relationship Details

• Type: Marriage
• Duration: Commenced cohabitation in 2002, married in 2006, and separated in October 2018. Total duration of 16 years.
• Ages at Judgment: Husband 55 years, Wife 49 years.

Children

• Children from Relationship: One child, a son, aged 19.
• Children from Previous Relationships: The husband has three children from a previous marriage who spent alternate weekends with the parties during the early years of the marriage.

Initial Financial Positions

• Husband: Established the business in 1999, before cohabitation; at that time it was in its infancy, he could not draw a living from it and it had a negative asset position.
• Wife: Says she introduced approximately $160,000, including $60,000 from the breakdown of her first marriage, $30,000 from the sale of her half share in a business, $20,000 including a redundancy payment, and other cash savings. She also earned about $50,000 a year.

Contributions During the Relationship

• Financial Contributions:

  • The husband's business was established before the relationship. The family received substantial money from the husband's mother and stepfather, including $254,780 the wife conceded was received between 2011 and 2018 (with $120,000 towards the son's school fees), and an investment of about $285,000 to $350,000 around 2005 in a business the wife attempted to establish, which failed.
  • The wife introduced significant initial assets and her income, and maintained the businesses to free up the husband's time.

• Non-financial Contributions:

  • Wife acted as a homemaker and was involved in childcare, not only for the son but also for the husband's children from his first marriage.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The husband continued maintaining and operating the business.

• Non-financial Contributions:

  • The wife was the primary caregiver for the son, including during his last two years of secondary education. The husband's mother paid a further $38,379 towards the son's school fees after separation, which the court treated as a gift.

Current Financial Position & Property Pool

• Husband:

  • Retains the business (agreed value $410,000), his share portfolio ($16,937) and his superannuation ($222,050), less a split of $33,379 to the wife so that superannuation is equalised.
  • Receives a payment of $329,197 from the wife.

• Wife:

  • Keeps the former family home (valued at $1,450,000, with mortgages of $516,238), refinancing it into her name, plus her interest in her company, her motor vehicle, her superannuation ($155,292) and her inheritance.

• Property Pool: Net non-superannuation assets of $1,365,699, plus superannuation of $377,342, for a total of $1,743,041.

Assessment of Contributions and Future Needs

• Contributions Assessment:

  • Non-superannuation assets assessed at 57.5% to the husband and 42.5% to the wife, weighing the wife's initial contribution against the gifts from the husband's family and all other contributions over about 20 years.

• Future Needs Adjustments:

  • The wife received an additional 2.5% adjustment (about $34,142) for future needs, because the husband can adjust his income through his business and lives with a partner sharing expenses, bringing the division to 55% for the husband and 45% for the wife in non-superannuation assets.

• Final Division:

  • Non-superannuation assets 55% to the husband and 45% to the wife, with superannuation equalised. Across the whole pool, including superannuation, the husband receives about 54% ($939,805) and the wife about 46% ($803,235).

Unique Aspects

• The husband's establishment and retention of the business played a critical role in his contributions.
• Extensive gifts from the husband's mother and stepfather influenced the contributions assessment. Money the husband said was a loan from his mother was treated as a gift or an advance on his inheritance, not a debt of the pool.
• Detailed account of inheritance matters and the wife’s initial contributions was necessary to determine proper division, despite lacking documented evidence for some historical claims.

Takeaway

In this case, significant emphasis is placed on both financial gifts and established business contributions from one party, while also balancing non-financial contributions such as homemaking and childcare provided by the other. The equitable division took into account past contributions, the future needs of both parties, and an acknowledgment of the impact of inherited and gifted assets during 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 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.