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Divorce Settlement Advice: Does Looking After Your Partner’s Children Matter in a Property Dispute?

Divorce Settlement Advice: Is Caring for Your Partner’s Children Taken Into Account in Property Proceedings?

With the emergence of blended families, one issue that often looms large in the minds those involved in a property dispute is whether the fact of caring for their partner’s children is taken into account. That issue was explored by the Full Court in Robb & Robb (1994) 18 FamLR 489.

Robb was an appeal from the wife against property orders. The orders provided that the husband would indemnify the wife against a liability for a debt and that the wife would transfer her interest in the former matrimonial home to the husband. The parties began living together in 1979 and married 2 years later. The wife’s daugthers, B and K, lived with the parties; and in 1983, the parties had a child of their own, W. Separation occurred in 1992. The wife and her daughters left the matrimonial home while the husband continued to live there with W.

One of the grounds for the wife’s appeal was that the trial had erred in considering the husband’s contributions towards maintaining B and K during the course of the relationship. Specifically, the wife submitted that the husband’s contribution to maintaining B and K did not fall within the scope of s 75(2)(o) of the Family Law Act.

Divorce Settlement Advice: The Full Court’s Decision

The Full Court rejected the wife’s submission. The husband’s contribution to the care of B and K was a fact or circumstance to be taken into account under s 75(2)(o). This determination was based on the court’s finding that the justice of case clearly required the husband’s contributions to be taken into account.

In determining whether the justice of a particular case requires a matter to be into account, the court will have regard to:

  1. whether certain legal obligations exist, or do not exist, as between the parties; and
  2. ordinary notions of justice and equity as between the parties.

The husband was “…acting essentially as a volunteer assisting the wife in the discharge of her legal obligations.” He had no legal obligation to maintain B and K. The wife, on the other hand, did. Accordingly, the justice of the case required the husband’s contribution to be taken into account under s 75(2)(o) of the Act.

The wife’s contributions to B and K’s maintenance, on the other hand, did not fall within the scope of s 75(2)(o). Ordinarily notions of justice and equity did not call for an adjustment to be made in the wife’s favour. A failure to make such an adjustment would not have offended ordinary notions of justice. By contributing to her own daughter’s maintenance, the wife was not assisting the fulfillment or discharging a legal obligation of the husband. Instead, she was merely fulfilling her own legal obligations. That legal obligation was the duty to maintain her children.

Divorce Settlement Advice: Concluding Remarks

Robb may be regarded as Full Court authority in support of the following proposition. Contributing to the maintenance of a child from your partner’s former relationship may fall within the scope of s 75(2)(o) of the Act; whereas the same may not hold true in relation to child’s parent.

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