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Dispute Over Proceeds of Matrimonial Home Among Husband and Wife

Upton & Upton [2021] FCCA 1137 (28 May 2021)

Parties dispute the allocated percentage of the proceeds of their inherited matrimonial home.  Court ruled a 70/30 division for the husband and wife respectively in consideration of the former's financial contributions and the latter having predominant care of their three children.

Facts:

The parties were in a relationship for over 20 years and after separation a property dispute arose.  Their three children live with the parents in a 9/5 pattern in favor of the mother.  The property in dispute was received as an inheritance for the benefit of the parties.  The father seeks an 80/20 division of non-superannuation assets in his favour and the wife seeks a division of 60/40 in the husband’s favour.  Both parties agree that there should be an equalization of superannuation. 

Issue:

Whether the division should be in favor of the father.

Applicable law:

Family Law Act 1975 (Cth) ss 90XT(1)(a)- provides for how the Court shall execute a splitting order.

Analysis:

The direct financial contributions made by each party as a basis for the property dispute is relied upon as an extraordinary circumstance.  As asserted by the wife, the length of the relationship cannot be left with a merely token outcome.

Conclusion: 

Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 the base amount of $42,992 (“the base amount”) is to be allocated to the Wife from the interest of the Husband's superannuation account and the court ordered the net proceeds of the sale of the former matrimonial home be divided into 70 per cent to the husband and 30 percent to the wife.

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