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The Court’s Approach to Long Relationships/Marriages

By Natasha Orr, Senior Associate

In the recent case of Hurst & Hurst, the wife successfully appealed the decision of the Trial Judge which provided for the property, assets and liabilities of the parties to be divided 60/40 in the husband’s favour after a marriage of approximately 39 years.

The parties had four children together, the youngest being 13 and a half years at time of the Trial. The youngest child, and the party’s eldest child (who had significant psychiatric issues), were living primary with the wife at the time of the Trial. The wife was 56 at the time of the Trial and unable to undertake employment due to a number of medical conditions. The husband was 66 years of age and intended to continue practising as a professional, although his income had only ever been modest.

The main reason that the Trial Judge awarded the husband a greater share of the asset pool was the fact that he had inherited vacant land 14 years prior to the Trial, then worth $400,000. At Trial, the land was worth $1,820,000.

On appeal, the Full Court of the Family Court determined that the Trial Judge had erred by not properly considering:

  • The indirect financial contributions of the parties and parenting and homemaker contributions over the course of the lengthy relationship.

The Court stated that there is a risk in ignoring the significant contributions made by both parties that did not have a nexus to the land which had been inherited by the husband and that the “Trial Judge did not heed that risk”; and

  • A ‘standard of living’ that is in all the circumstances reasonable’ given the duration of the relationship and the impact it has had on the capacity of each party to earn and the commitments that each party is left with.

The Court noted that the parties’ youngest child still had to complete the bulk of his secondary education and the wife received very little child support to assist her to care for this child and his disabled adult brother. The Court also noted that if the wife purchased a home equivalent to the home that the husband was retaining that she would be left with only about $45,000 to invest.

The Full Court of the Family Court ordered that this matter is remitted for a re-hearing by another Trial Judge.

This case confirms that, where parties live together in a long relationship, the direct financial contributions of one party (whether it be property or assets contributed at the start of the relationship or a contribution made during the relationship, such as the receipt of an inheritance) need to be considered in light of all the other factors and, where proper consideration is given, it may be that those direct financial contributions do not result in any, or any significant, adjustment to one party. In other words, the direct financial contributions of one party is likely to be given less weight in a long relationship where the other party has made other significant contributions, including indirect financial contributions and contributions as parent and homemaker.

If you are experiencing separation and require advice about how the law applies to your specific circumstances, contact Fedorov Lawyers for an initial consultation.