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KP Carmody & Co

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No Property Orders for Husband Who Had Effectively Been Supported By Wife and Her Parents During 6 Year Cohabitation


In Babray [2019] FCCA 3514 (9 December 2019) Judge Kelly of the Federal Circuit Court of Australia dismissed the husband’s application for property settlement in respect of a marriage where the parties lived together for 5.75 years and had a six year old child.  At commencement of cohabitation in 2009 or 2010 the husband effected a property settlement with his former de facto partner, borrowing $90,000 from the wife’s parents so as to achieve that settlement. The parties married in 2011.

When the husband’s suburban property was sold in that year, he received net sale proceeds of $47,750.  He put those proceeds towards buying a motor vehicle for $70,000, but he could not afford it so he borrowed more money from the wife’s parents to make up the shortfall.  At cohabitation the wife owned an unencumbered property which remained in the asset pool. 

The husband worked for three years as a labourer before being made redundant.  He was then unemployed for three years, retraining in occupational health and safety and re-joining the workforce before separating. The husband sought 30 per cent of the wife’s property, which the wife opposed.  The parties had kept their finances separate, save for a joint bank account established for living expenses.

The Court said:

‘Although the parties had established a joint account, the applicant’s contributions were sporadic…[When] the applicant made contributions they barely covered his personal expenditure and… when he did not, he was effectively supported by the respondent.

In terms of contributions… [the wife] worked throughout…cohabitation, applying the whole of her income to the support of the relationship and the maintenance or improvement of her property.

W]hen challenged… [the applicant] agreed that…his [$8,000] redundancy…had been… applied… in… reduction of his indebtedness to the respondent’s parents.

[T]he respondent’s … property was kept strictly separate in the parties’ dealings… [she] meeting all costs and discharging all liabilities…The property was bought into the relationship by the respondent…

[H]is work around the property came nowhere near to supporting a conclusion that he had equity…

Additionally, the respondent met the parties’ living expenses…[while] the applicant was unemployed. …[T]he respondent effectively bore the whole of the parties’ living expenses for at least half of…the relationship.”

The advice in this article is general in nature and you should consult your solicitor for specific advice