Wade & Wade [2023] FedCFamC2F 288

Wade & Wade [2023] FedCFamC2F 288

Background Details

• Type of Relationship: Marriage
• Duration: Married in 2004, cohabitation commenced late 1999, separated on 1 January 2012, finally divorced on 7 May 2019, with a total relationship span of around 12 years including cohabitation.
• Ages at Judgment: Husband 55 years old, Wife 49 years old.

Children

• Children from Relationship: Two children, X (16) and Y (12).
• Special Needs/Circumstances: The younger child has special needs requiring closer care and supervision.

Initial Financial Positions

• Husband:

  • Claimed assets of $397,000, including savings, an inheritance, shares, vehicles, contents and superannuation, but dated them from about the 2004 marriage. The court found cohabitation began no later than late 1999, so part of those savings built up during the relationship and his initial contribution was less than he claimed.

• Wife:

  • Had some small savings; no significant assets at cohabitation commencement were noted by her.

Contributions During the Relationship

• Financial Contributions:

  • The husband's savings, partly from before the relationship, went towards the property purchase.
  • The purchase of the matrimonial home in 2007 for $865,000 (a total cost of $905,021 with stamp duty and other costs), funded by both parties' savings, including $407,021 from the husband and $36,000 from the wife.

• Non-Financial Contributions:

  • Wife acted as the primary carer for the children, especially managing Y's special needs, and was the homemaker.
  • Both parties contributed to the welfare of the family through payment of living expenses.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The husband continued to financially support the family, paying on the mortgage and other expenses until January 2021.
  • The wife continued to operate her business for income and paid for mortgage post-husband's unemployment in 2021.

• Non-Financial Contributions:

  • The wife continued as the primary caregiver after the separation.

• Dissipation of Assets:

  • There was no notable dissipation of assets apart from standard use of offset accounts post-separation.

Current Financial Position & Property Pool

• Total Value: Net figure for property and superannuation is $2,462,649.

• Assets & Liabilities:

  • B Street, Suburb C property valued at $2,000,000 with mortgage liability of $260,981.
  • Husband's superannuation balance $601,925.
  • Wife's superannuation balance $70,913.

Assessment of Contributions and Future Needs

• Contributions:

  • Husband's contributions: 52%, Wife's contributions: 48% (taking into account initial contributions and ongoing equality in contributions).
  • Adjustments for future needs resulted in 12% in favour of the wife in the property pool and 6% in superannuation due to disparity in income and primary care for children.

• Final Division:

  • Non-superannuation assets: 60% to wife, 40% to husband.
  • Superannuation: 54% to the wife and 46% to the husband of $672,838, by a split with a base amount of $292,419 from the husband's superannuation.

Unique Aspects

• The wife requested to stay in the property until 2029; the court found no practical necessity for this and ordered an immediate sale, with the net proceeds divided to give the 60/40 result.
• Complexity in the valuation of initial contributions due to lack of evidence from the start of cohabitation.
• The husband's proposal of reserve price reduction percentages during the property sale was adjusted by the court.

The outcomes reflect the court's thorough consideration of individual contributions, future financial needs, and provided a clear division of property that was deemed equitable under the circumstances.

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.