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WIFE DOES NOT PARTICIPATE IN THE APPLICATION FOR PROPERTY ADJUSTMENT PROCEEDINGS INITIATED BY THE HUSBAND

Samadi & Amaya [2020] FCCA 2936 (29 October 2020)

This is an application for property adjustment under s.79 of the Family Law Act 1975. The application was filed by the husband. The wife has not participated in the proceedings at all.

Facts:

the husband initially proposed a 50:50 split of the parties’ assets. At the first final hearing, he sought  !00% of the parties’ assets. However, at the second final hearing, the husband returned to his initial proposal of a 50:50 split. The wife has not participated in the proceedings at all.

The husband submitted that the parties made equal contributions during the marriage, with the husband being the primary breadwinner and the wife being the primary homemaker. The husband submitted that both parties received gifts of similar amounts from their families to assist with the purchase of the two investment properties.

Issue: Should the court grant the 50-50 split of parties’ assets?

Law:

  • Section 79 of the Act gives the court power to alter the interests of the parties to a marriage in the property of the parties to that marriage.

Analysis:

In the absence of any evidence to the contrary, the court accepts the husband’s claims in regard to contributions, save that, on his own account, the wife has been the sole carer of the parties’ child post-separation. That is a significant contribution.

The difficulty with this case is that the wife has not participated in the proceedings at all, notwithstanding that she has been put on notice about them. The corollary of the wife’s failure to participate in the proceedings is that she has not made any disclosure. In accordance with authority, it is open to the court to conclude that the wife has not made disclosure and has not participated in the proceedings because it would not be in her interests to do so. That is, it is open to the court to conclude that the wife has other assets which, if disclosed, could be claimed, at least in part, by the husband.

On the material before the court, the contributions somewhat favour the husband, and the future factors somewhat favour the wife. However, because the wife has not given any disclosure, the true value of the asset pool is unknown.

In the court’s view, on the information as it is presently known, it is just and equitable to make orders substantially in the terms that the husband now seeks, being a 50:50 split of the known asset pool.

The court will also include the usual notation under r.16.05(2)(a) of the Federal Circuit Court Rules 2001, which provides that the court may vary or set aside a judgment or order made in the absence of a party, so that if, by some mischance, the wife was not in fact aware of these proceedings, she will have the opportunity to seek to set aside the orders.

Conclusion: The asset of the husband and wife must be equally (50-50) divided among them.

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