Saturday, 23 May 2009

Family Court: equal division after 41 year marriage

In the recent Full Court of the Family Court case of Banville and Banville, the court overturned a decision of the trial judge to divide a property pool 60/40 in favour of the husband, when the parties had been married for 41 years. The Full Court ordered that there be an equal division.

The court held (emphasis added):

It is not in issue that all of the assets, save for the Totleben assets, were
acquired as a result of equal contributions made by the husband and the wife. It
is also not in issue that most of the money required to acquire the Totleben
assets came from the sale of the practice which was built up during the
Whilst there is no challenge to her Honour’s finding that Mrs
Totleben took responsibility for “overseeing the management” of the [regional
centre] properties, her Honour recorded that these assets had been managed by
agents and that Mrs Totleben was merely “the point of contact in relation to any
decisions and enquiries about the properties”. Although her Honour did find this
was a contribution made on behalf of the husband, no finding was made as to
whether or not Mrs Totleben undertook this work during the time in which she was
working in the husband’s practice (for which she was ultimately remunerated) or
whether it was undertaken independently of that work. Be that as it may, the
evidence does not suggest that Mrs Totleben’s contribution in this regard
was at all onerous ...
We have observed that her Honour made no express
finding as to the respective values of the husband’s contribution in the latter
phase of the marriage in earning income from the practice and the wife’s
contributions in working part-time, attending to the stud business and working
around the property. However, our own consideration of the evidence does
not lead us to conclude that either set of contributions should be regarded
intrinsically as having any greater value than the other. It seems to us both
parties were doing their best to earn income and to maintain and conserve
To the extent that any consideration of contributions might lead to
an assessment that the husband had made any greater contribution than the wife,
we would to that extent make an adjustment pursuant to s 75(2),
regard in particular to subparagraphs (a), (b), (g), (j), (k) and (m).
We consider that after a marriage spanning 41 years, and
taking into account her Honour’s uncontested factual findings, an
outcome where the assets were divided equally would be just and

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