In the matter of Jabour, the Full Court of the Family Court of Australia dealt with property settlement orders made by the trial judge. The trial judge had divided the net non-superannuation assets 66% to the husband and 34% to the wife. The Full Court reassessed the division as 53% to the husband and 47% to the wife.

Summary of facts:

  • The parties met in 1988 and married in 1991
  • They had 3 children who were adults by the time of the hearing
  • The parties separated in 2015
  • At the time of cohabitation the Husband had the former matrimonial home and a half interest in 3 blocks of land (the value at the time was not known but estimated at about $200,000). He had held his interest in the land 13 years prior to the relationship
  • In 1998, the Husband and the co-owner divided blocks 1 and 2 between them.
  • In 2001, the Husband sold block 2 and applied half the proceeds to buy one full share of the remaining block and the other half for family purposes.
  • His interest in the remaining block of land was in excess of $10 million at the time of the trial due to rezoning in 2010.
  • The total pool at the time of trial was about $9 million not including superannuation, as the parties had already received $1 million each by way of interim property settlement.

At first instance:

  • The trial judge determined that apart from the blocks of land the parties contributions were equal
  • The trial judge awarded the Husband 66% of the net non-superannuation property and Wife 34% recognizing the Husband’s contributions at the commencement of the marriage
  • The Wife appealed

On appeal:

  • The Full Court held on appeal that the trial judge was in error in seeking a nexus between the contributions by the parties to the property and the present value. It considered the trial judge overlooked
    • The parties’ decision during the marriage to use half of the proceeds of one of the blocks to gain sole ownership of the other block
    • The parties’ decision not to sell the remaining block at an early stage (where it would have been worth much less) and living a modest lifestyle for 5 years
  • The Court considered that as the sudden increase in the value of the asset was unrelated to the efforts of the parties, the contribution was contributed to by both parties
    • It rejected an argument that any increase in value in assets that were initially contributed by one party should be regarded as that party’s contribution
    • It referenced case where it was found that the rapidly accelerated value of a property due to rezoning was a mere windfall to which neither party had a greater or lesser claim
  • The Full Court reassessed contributions as 53% to the husband and 47% to the wife, stating that the property was just one of the myriad of contributions made. It stated that the weight attached to an initial contribution must be assessed against the rubric of all the contributions made by the parties over the course of the relationship

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