By Margaret Miller • In Family LawComments Off on BIG MONEY CASE – EQUAL DIVISION FOR WIFE – NO SURPRISES HERE!

Smith v Field was heralded previously as a case where the family court acknowledged that a party could make a “special contribution” which entitled them to a larger slice of the matrimonial assets. At first instance in this case, the court made a distribution of 60%/40% in the husband’s favour. On appeal, the Family Court rejected the argument of “special contribution” made by the husband and divided the assets equally.  Contrary to the news reports, the case was not a win for a “stay at home mum” because the wife had also played a large part in the family business.

The parties started out with negligible assets and married at 21 and 18 respectively.  They were married for 29 years and, over this time they built up a successful building company. They had three adult children in their thirties who also worked in the family business.

For much of the marriage, the wife was responsible for looking after the children and the household while the husband worked 7 days a week, but she also played an active role in the business as a director and in administering the business while it grew.  Her involvement continued after the children left home.

What made this case different is that it did not get to court until four years after separation.  During this time, both the husband and the wife continued to act as directors and to actively work in the business. The wife will continue in the business after the court case.

Lawyers for the husband argued that, in the four years after separation, the husband did much more in the business than the wife and he made a “special contribution”.  This was not supported by the evidence. The husband also relied on a schedule of previous case results showing the wife received between 27.5% and 40% in what could be described as “special contribution” cases.

However, the judge failed to regard the contributions in this long marriage as being equal unless there was something very extraordinary. While the husband worked hard in the business, so did the wife.  She also contributed as a homemaker.  There was nothing extraordinary in what the husband contributed when compared to the wife’s contribution.

The appeal judges pointed out that a danger with arguing “special contributions” is that it may lead to judges having to make an assessment of how well each party fulfilled their role.  How well the housework was done, whether the husband was lazy and could have worked harder, and so on.

Overseas case law has already moved to the notion of marriage as an equal partnership, with an equal distribution in a long marriage in acknowledgment that the parties had agreed on their respective roles in the marriage. The recent case law was gradually moving towards this position and Smith v Fields has clarified the basis for property division in long marriages further.

For more information, or for any other family law related queries, please contact Margaret Miller, Partner in our Litigation and Dispute Resolution department.

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