Big Money Cases – 50/50 split again confirmed by The Full Court of the Family Court
In a further recent decision in the case of Hoffman & Hoffman (30 May 2014); the Full Court of the Family Court has again confirmed that there is no binding rule or legitimate guideline concerning the Application of “special contributions” in big money cases. This case involved a 36 year marriage and the division of $10 million. There were four children of the relationship.
The Trial Judge held that the assets of $10 million should be divided equally between the Husband and Wife. The Husband (who represented himself) appealed to the Full Court, arguing that his special contribution in his business entitled him to a greater percentage split than 50%. The Full Court rejected that argument and upheld the Judge’s equal division of the $10 million.
This is yet another case of the Family Court in recent times (together with numerous articles) concentrating on the division of property in big money cases. There is no doubt, that these cases and articles written by learned authors indicate there is a current flavour in the Family Court to divide assets equally in large money cases.
However, it must be remembered that the High Court has stated that there is no presumption of equality and it is the writer’s view that some of the comments in the case of Hoffman and other cases are a veiled attempt to bring back “equality” or a “presumption of equality” under the guise of “relevant considerations” that the Court is entitled to take into account.
It is suggested, that under no circumstances can the Court put up as a relevant consideration or guideline any sort of notion of equality in relation to the task of identifying, assessing and evaluating each parties respective contributions.
It is the evidence of each party that guides the Court in the identification and assessment of relevant contributions. It is not some sort of general notion, with no foundation that long marriages should result in equality. Even if it is the case that the majority of cases in long marriages do result in a finding of equality, then that alone cannot have any impact upon the exercise of the discretion under Section 79 to make a just and equitable Property Settlement Order.
The Court’s role is to identify and assess the contributions made by each of the parties without any presumption of entitlement. The task is to make findings as to the nature, form, characteristics and duration of each and all of the contributions made by each of the parties, without adjectival qualification. Thereafter, the Court must undertake the difficult task in assessing how those respective contributions should be weighed.
In any property case it is very important for one to present their case with details in particularity about the various contributions they have made throughout the relationship. It is this effort and this alone that is important to the assessment and weighing of contributions in making a property determination.
