Parkinson, Patrick --- "Quantifying the Homemaker Contribution in Family Property Law" [2003] FedLawRw 1; (2003) 31(1) Federal Law Review 1
* Professor of Law, University of Sydney. The author is most grateful for the comments of Justice Richard Chisholm, Professor John Dewar, Miranda Kaye and the anonymous reviewers on earlier versions of this article.[ ]
1 Developments and Events, (2002) 16 Australian Journal of Family Law 169.
[2] Section 79 is contained within Part VIII of the Family Law Act.
[3] Catherine Hakim, Work-lifestyle choices in the 21st Century: Preference Theory (2000).
[4] Michael Bittman, Juggling Time: How Australian Families Use Their Time (1991); Australian Bureau of Statistics, No 4150.0, Time Use Survey (1997).
[5] Patrick Parkinson and Bruce Smyth, 'When the difference is night & day: Parent–child contact after separation' (Paper given at the 8th Australian Institute of Family Studies Conference, Melbourne, 12–14 February 2003).
[6] Mary Ann Glendon, The New Family and the New Property (1981) 129.
[7] Waters and Jurek (1995) FLC 92–635.
[8] There remains debate about whether homemaker contributions should be equated with earnings in cases where a great deal of wealth has accumulated. Yet despite the heat these cases generate, these cases are rare and their precedential significance very limited. See below Section 5.
[9] Shaw and Shaw (1989) FLC 92–010; Kennon and Kennon (1997) FLC 92–757. See Patrick Parkinson, 'The Diminishing Significance of Initial Contributions to Property' (1999) 13 Australian Journal of Family Law 52.
[10] Figgins and Figgins [2002] FamCA 688.
[11] Farmer and Bramley (2000) FLC 93–060; For a critique see Patrick Parkinson, 'Judicial Discretion, the Homemaker Contribution and Assets Acquired After Separation' (2001) 15 Australian Journal of Family Law 155.
[12] John Dewar, 'Contributions Outside Marriage' (Paper given at the 10th National Family Law Conference, Melbourne, 16–20 March 2002). I am indebted to Professor Dewar for this observation, although my characterisation of the two approaches differs from his own.
[13] Hilary Charlesworth and Richard Ingleby, 'The Sexual Division of Labour and Family Property Law' (1988) 6(1) Law in Context 29; Hilary Charlesworth, 'Domestic Contributions to Matrimonial Property' (1989) 3 Australian Journal of Family Law 147; Regina Graycar, 'Gendered Assumptions in Family Law Decision-Making' (1994) 22 Federal Law Review 278; Regina Graycar, 'Matrimonial Property Law Reform and Equality for Women: Discourses in Discord?' (1995) 25 Victoria University of Wellington Law Review 9; Lisa Young, 'Sissinghurst, Sackville-West and "Special Skill"' (1997) 11 Australian Journal of Family Law 268; Rebecca Bailey-Harris, 'The Role of Maintenance and Property Orders in Redressing Inequality: Re-Opening the Debate' (1998) 12 Australian Journal of Family Law 3; Renata Alexander, 'Reflections on Gender in Family Law Decision Making in Australia' (Paper given at the Gender, Sexuality and Law II Conference, Keele, England, 28–30 June 2002).
[14] Gibbs J in De Winter and De Winter (1979) FLC 90–605, 78,092 described the discretion as 'extraordinarily wide'.
[15] It has been said that the Court's role in proceedings under s 79 is not akin to an accounting exercise. Rather, the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind: Harris and Harris (1991) FLC 92–254, 78,705 citing McLelland J in Davey v Lee (1990) 13 Fam LR 688, 689.
[16] Jones and Jones (1990) FLC 92–143; Collins and Collins (1990) FLC 92–149. The time at which these factors fall to be considered is at the time of the hearing: Candlish and Pratt (1980) FLC 90–819.
[17] This has been offered as a rationale for the application of the s 75(2) factors by Fogarty J in Waters and Jurek (1995) FLC 92–635. However, this rationale is not a limitation on the power to alter interests by reference to the s 75(2) factors. Guest J (dissenting) argued in Farmer and Bramley (2000) FLC 93–060, 87,980 that 'there is a requirement for a causal connection between the circumstances of cohabitation during the marriage and the difference, or dissimilitude in the parties' property and income at the time of the hearing following separation'. This view was rejected by the majority in this case.
[18] Justice Chisholm, writing extrajudicially, has likened the position of the Family Court judge to a bus driver who is given countless instructions about how to drive the bus, and the authority to do various actions such as turning left or right. There is also the occasional advice or correction offered by three senior drivers. The one piece of information which he or she is not given is where to take the bus. All he or she is told is that the driver is required to drive to a reasonable destination: Justice Richard Chisholm, 'Looking for Destinations in Property Adjustment' (Paper given at the National Family Court Seminar, Twin Waters, Queensland, 1995).
[19] McLay and McLay (1996) FLC 92–667, 82,901 (Nicholson CJ, Fogarty and Dessau JJ).
[20] See, eg, Waters and Jurek (1995) FLC 92–635.
[21] Zyk and Zyk (1995) FLC 92–644. Contrast Brease and Brease (1998) FLC 92–793.
[22] Kowaliw and Kowaliw (1981) FLC 91–092; Browne v Green (1999) FLC 92–873.
[23] McLay and McLay (1996) FLC 92–667, 82,901 (Nicholson CJ, Fogarty and Dessau JJ).
[24] G and G (2000) FLC 93–043. The Full Court did not explain why these 'contributions' are relevant or how to quantify them. The couple in this case, who were both of mature age, began a liaison in 1973, and in 1975 announced an engagement. However, they only married in 1986. Prior to that, they remained in a close and exclusive relationship not involving cohabitation. They separated in 1995 without children. The trial judge took into account the wife's contributions to the welfare of the husband before they began living together, and this was affirmed by the Full Court. Thus it was relevant that she made coffee for breakfast from 1976 to 1983; provided accommodation for one night per week for a period, helped with some of the husband's laundry, and entertained and attended social functions with him. The husband's contributions to the wife's wellbeing during their liaison were considered as well.
[25] The Domestic Relationships Act 1994 (ACT) s 3 defines a domestic relationship as 'a personal relationship (other than a legal marriage) between 2 adults in which 1 provides personal or financial commitment and support of a domestic nature for the material benefit of the other, and includes a de facto marriage.' Subsection (2) provides that 'a personal relationship may exist between persons although they are not members of the same household.' This may be contrasted with the definition of domestic relationship in s 5 of the Property (Relationships) Act 1984 (NSW), which requires the parties to be living together.
[26] Such a development is also being considered by the New South Wales Law Reform Commission: New South Wales Law Reform Commission, 'Review of the Property (Relationships) Act 1984 (NSW)' (Discussion Paper 44, 2002) 6.17–6.19 and Issue 19.
[27] Intention, contribution and reliance are pervasive themes in the equity jurisprudence. See Patrick Parkinson, 'Intention, Contribution and Reliance in the De Facto Cases' (1991) 5 Australian Journal of Family Law 268.
[28] Reliance encompasses other, related justifications of vulnerability and dependency.
[29] Partnership, treating the husband and wife as equals, is the basis for property division in community property countries, although community property has its conceptual origins in the notion of the unification of the husband and wife's separate legal persona through marital union.
[30] Need has been a historic basis for spousal maintenance in particular, but the concept colours property division also under the Matrimonial Causes Act 1973 (Eng) c 18 in England and Wales. This justification also partially explains the inclusion of the spousal maintenance factors in s 75(2) of the Family Law Act 1975.
[31] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242.
[32] Green v Green (1989) 17 NSWLR 343.
[33] This is reflected in the work of sociologists Ulrich Beck and Elisabeth Beck–Gernsheim, who see modern love relationships as reflecting individualisation. They write: 'Since the dynamics of the individualization process have infiltrated family life, all forms of living together have started to undergo a radical change. The links once joining biography to family are slackening. A lifelong nuclear family which blends together the biographies of a man and a woman as parents is becoming the exception, whereas alternating between various family and non-family settings, depending on what phase of biography one has reached, is becoming the rule.' Ulrich Beck and Elisabeth Beck-Gernsheim, The Normal Chaos of Love (1995, translated from the German original), 33.
[34] Ken Dempsey, Inequalities in Marriage (1997).
[35] Empirical research suggests that tensions over the uneven division of household tasks may be a factor in the demise of relationships, or at least a catalyst for the expression of dissatisfaction. See Margaret Brinig and Steve Nock, 'Weak Men and Disorderly Women: Divorce and the Division of Labor' in Anthony Dnes and Robert Rowthorn (eds), The Law and Economics of Marriage and Divorce (2002) 171 (baseline risk of dissolution 4.43 times greater when both spouses saw the allocation of paid work and household tasks as very unfair to themselves, but women's sense of fairness about household work considerably more consequential than men's and more consequential than either partner's concerns about paid work: 183 and 186); Herbert Smith, Constance Gager and Philip Morgan, 'Identifying Underlying Dimensions in Spouses' Evaluations of Fairness in the Division of Household Labor' (1998) 27 Social Science Research 305 ('Until the marriage is something less than "very happy", many wives and husbands are disinclined to evaluate the relative fairness of their marriage at all': 307).
[36] See, eg, New South Wales Law Reform Commission, 'Review of the Property (Relationships) Act 1984 (NSW)' (Discussion Paper 44, 2002); Lindy Wilmott, Ben Mathews and Greg Shoebridge, 'De Facto Relationships Property Adjustment Law – A National Direction?' (2003) Australian Journal of Family Law (forthcoming).
[37] See Janeen Baxter and Edith Gray, 'For Richer or Poorer: Women, Men and Marriage' (Paper given at the 8th Australian Institute of Family Studies Conference, Melbourne, 12–14 February 2003); Janeen Baxter, 'Marital Status and the Division of Household Labour: Cohabitation versus Marriage' (2001) Family Matters no 58, 16, 20.
[38] J Todd and L Jones, Matrmonial Property (1972) 38.
[39] A Manners and I Rauta, Family Property in Scotland (1981) 12.
[40] Institute of Law Research and Reform, University of Alberta, Working Paper on Matrimonial Property (1974) Appendix A.
[41] William Hines, 'Personal Property Joint Tenancies: More Law, Fact and Fancy' (1970) 54 Minnesota Law Review 509, 574 (survey in Iowa). See also Bruce Townsend, 'Creation of Joint Rights Between Husband and Wife in Personal Property: I' (1954) 52 Michigan Law Review 779, 817–819 (survey in Indiana).
[42] Helen Glezer, 'Cohabitation' (1991) Family Matters no 30, 24–27.
[43] See, eg, Domestic Relationships Act 1994 (ACT); Property Law Act 1974 (Qld); Family Court Act 1997 (WA) as amended by Family Court Amendment Act 2002 (WA).
[44] The lack of clarity about whether de facto relationships should be treated like marriages is a reason for the grave conceptual confusion in the case law. Vague references to assessments of 'contributions' in the absence of a clear understanding about whether or not the relationship is to be seen as a socioeconomic partnership can lead to quite different interpretations of the law. In the states and territories, there are clear philosophical differences between judges in how to assess the homemaker contribution when interpreting provisions concerning the property of people in de facto relationships. This has led to divided appellate courts and both inconsistency and conceptual incoherence in the interpretation and application of the law. See, eg, Evans v Marmont [1997] NSWSC 331; (1997) 42 NSWLR 70, in which the different approaches of the five judges called upon to try to settle the interpretation of the De Facto Relationships Act 1984 led to different assessments of what constituted a just and equitable outcome. See also Alex De Costa, 'Searching for Justice and Equity after Evans v Marmont: Property Adjustment Following the Termination of Domestic Relationships in New South Wales' (2002) 16 Australian Journal of Family Law 116.
[45] Compare Beth Shelton, Men, Women and Time: Gender Differences in Paid Work, Housework and Leisure (1992) 111–41 (men and women have approximately the same amount of leisure time although patterns of availability and use are different) with Sarah Berk, The Gender Factory: The Apportionment of Work in American Households (1985) (when the total number of work and household tasks increases, it is women who make the adjustments to their workload). For a general review of the literature, see Ken Dempsey, Inequalities in Marriage (1997) 51–58.
[46] Kathleen Funder, Margaret Harrison and Ruth Weston, Settling Down: Pathways of Parents After Divorce (1993).
[47] [1984] HCA 21; (1984) 156 CLR 605.
[48] The definition of domestic relationship in the Domestic Relationships Act 1994 (ACT) (see above n 25) is probably broad enough to encompass certain home-sharing arrangements, depending on how broadly the terms 'personal relationship' and 'support of a domestic nature for the material benefit of the other' are defined. Unless the law is confined to intimate relationships, or situations where a person cares for an elderly or disabled relative, involving significant unrewarded sacrifices, the scope of the legislation could be inappropriately wide. The definition in the Property (Relationships) Act 1984 (NSW) is narrower, requiring 'a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care' (emphasis added).
[49] The approach of equal division of the marital property, without other adjustments, may not be entirely adequate in certain situations involving childless couples and so there needs to be room for other principles based upon the role division in relationships. These other principles may need to be invoked where one party's investment in the stability of the relationship is not adequately compensated by the principle of equal division of the fruits of the marital enterprise. An example where such a division of the property may be insufficient is where one party has left a city or country to live with the other and where it has not been possible for that spouse to re-establish the same level of earning capacity in the new environment. Other examples are where a person withdraws from or diminishes workforce participation in order to care for an elderly parent requiring constant nursing, or where there is no need for two incomes and the couple choose to divide their roles in that way. I have developed these arguments in the context of unmarried cohabitation in 'The Property Rights of Cohabitees: Is Statutory Reform the Answer?' in David Pearl, Andrew Bainham and Ros Pickford (eds), Frontiers of Family Law (2nd ed, 1995) 301.
[50] (1979) FLC 90–709, 78,789.
[51] [1984] HCA 21; (1984) 156 CLR 605.
[52] Ibid 636.
[53] Waters and Jurek (1995) FLC 92–635, 82,379.
[54] Heather Joshi, 'Sex and Motherhood as Handicaps in the Labour Market' in Mavis Maclean and Dulcie Groves (eds), Women's Issues in Social Policy (1991) 179, 180.
[55] [1969] UKHL 5; [1970] AC 777.
[56] [1970] UKHL 3; [1971] AC 886.
[57] Falconer v Falconer [1970] 1 WLR 1333; Hargrave v Newton [1971] 1 WLR 1611; Hazell v Hazell [1972] 1 WLR 301.
[58] See, eg, Phillip Pettit, Equity and the Law of Trusts (5th ed, 1984) 127–131. See also John Mee, The Property Rights of Cohabitees (1999) Ch 3.
[59] See especially Eves v Eves [1975] EWCA Civ 3; [1975] 1 WLR 1338, 1342; also Cooke v Head [1972] 1 WLR 518.
[60] Burns v Burns [1984] Ch 317. As John Eekelaar said of the law as it stood: 'A woman's place is often still in the home, but if she stays there, she will acquire no interest in it': 'A Woman's Place—A Conflict Between Law and Social Values' [1987] Conveyancing and Property Lawyer 93, 94.
[61] Amendments have been made, with the consequence that the clause has lost some of its simplicity of expression.
[62] Professor Dewar has argued that the 1975 Act marked a decisive break from the trusts approach which had hitherto prevailed, and that therefore the trusts background does not help to understand the intentions of Parliament in 1975: John Dewar, 'Contributions Outside Marriage' (Paper given at the 10th National Family Law Conference, Melbourne, 16–20 March 2002). I argue rather that the 1975 Act was both a break from the pre-existing trusts jurisprudence and a continuation of it. It was a break because it took a much more holistic approach to the assessment of contributions than was the case in the trusts law of that period. Lord Denning's view was a minority view, and the homemaker contribution was not recognised as a contribution to the purchase price of the property in the law as it stood at that time. Yet the 1975 Act was a continuation of the trusts law jurisprudence in that the interpretation of trusts law as it stood then, and in particular as Lord Denning would have liked the law to have been, provided the broad conceptual framework for the first stage of the s 79 inquiry. It explains what the drafters of s 79 had in mind when focusing attention on the 'contributions' of the parties.
[63] Uniform Marriage and Divorce Act § 307, 9A ULA 288–9 (1998). The Act was originally passed in 1970. Alternatives A and B were inserted by amendment in 1973.
[64] Sir Jocelyn Simon, 'With All My Worldly Goods' (Presidential Address, Holdsworth Club, University of Birmingham, 1964) 15.
[65] (1977) 34 FLR 518, 519 (Evatt CJ).
[66] The idea of moving to a community property regime was discussed in a Report of the Joint Select Committee on the Family Law Act in 1980 (Family Law in Australia, [5.155]), and has been raised again by the present Government (Attorney-General's Department Discussion Paper, Property and Family Law – Options for Change (1999)) but has not gained political support.
[67] Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92–133, 77,915.
[68] This was described by Dawson J in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 647 as the 'overriding requirement' of s 79. The negative proposition was also stated by Strauss J, dissenting, in In the Marriage of Ferguson [1978] FamCA 70; (1978) 34 FLR 342, 358–9, in a passage cited with approval by the Full Court in Rogers and Rogers (1980) FLC 90–874, 75,539.
[69] Aroney and Aroney (1979) FLC 90–709, 78,784.
[70] See for example, Waters and Jurek (1995) FLC 92–635, 82,388; Clauson and Clauson (1995) FLC 92–595, 81,906–7.
[71] [1984] HCA 21; (1984) 156 CLR 605.
[72] Wardman and Hudson (formerly Wardman) [1978] FamCA 68; (1978) 33 FLR 196.
[73] Potthoff and Pothoff (1978) 30 FLR 571.
[74] [1984] HCA 21; (1984) 156 CLR 605.
[75] (1996) FLC 92–667.
[76] See, eg, Aroney and Aroney (1979) FLC 90–709; W and W (1980) FLC 90–872; Albany and Albany (1980) FLC 90–905: Aldred and Aldred (No 3) (1988) FLC 91–933.
[77] See the articles cited above n 13.
[78] (1993) FLC 92–335.
[79] Ibid 79,573.
[80] For example, there has been considerable controversy generated by the decision of the Full Court in JEL and DDF (2001) FLC 93–075. See, eg, Figgins and Figgins [2002] FamCA 688, [134] (Nicholson CJ and Buckley J). See also John Fogarty, 'Farmer/Bramley, Lynch/Fitzpatrick and White: Is this the Result of 25 Years of Section 79? Let's Start Again' (Paper given at the 10th National Family Law Conference, Melbourne, 16–20 March 2002).
[81] Whiteley and Whiteley (1992) FLC 92–304.
[82] [2001] EWCA Civ 679; [2002] Fam 97.
[83] [2002] EWCA Civ 1685 (Unreported, Thorpe, May LJJ and Bodey J, 14 November 2002).
[84] Ibid [46].
[86] Patrick Parkinson 'Reforming the Law of Family Property' (1999) 13 Australian Journal of Family Law 117 (arguing for reform of the law along the lines of deferred community systems).
[87] These views were expressed particularly in the debate on the Attorney-General's Discussion Paper on family property law (Attorney-General's Department Discussion Paper, Property and Family Law – Options for Change (1999)). See Justice Alastair Nicholson, 'Proposed Changes to Property Matters Under the Family Law Act,' (Speech delivered to the NSW Bar Association, Sydney, 20 May 1999); Family Court of Australia, Response of the Family Court of Australia to the Discussion Paper 'Property and Family Law: Options for Change' (1999). The Family Court's response cautiously endorsed the idea of a legislative statement of equality of contributions 'in the general run of marriages': [57], however it was not defined in terms of contributions made by the efforts of the parties during the course of the marriage. In large measure the Court's response was a justification of the existing approach to the assessment of contributions in the case law. See also Regina Graycar, 'If it Ain't Broke, Don't Fix It: Matrimonial Property Law Reform and the Forgotten Majority' (Speech delivered to the NSW Bar Association, Sydney, 20 May 1999). These papers are available at <http://www.familycourt.gov.au/papers/html/property.html> .
[88] These costs are not only in terms of court time and the time spent in writing judgments, but also the cost of preparing affidavits in the numerous cases which settle at a relatively late stage, but before trial.
[89] Such cases were described as rare by the Family Law Council: Submission on the Discussion Paper ‘Property and Family Law: Options For Change’ (July 1999) 73.
[90] Aroney and Aroney (1979) FLC 90–709, 78,785; Carter and Carter (1981) FLC 91–061, 76,489, 76,491; Macura and Macura (1982) FLC 91–252, 77,394.
[91] Rosati and Rosati (1998) FLC 92–804, 85,039.
[92] (1985) FLC 91–626.
[93] Ibid 80,078.
[94] (1979) FLC 90–677.
[95] Ibid 78,613–14.
[96] (1985) FLC 91–626.
[97] In Zyk and Zyk (1995) FLC 92–644, the Full Court identified five factors to consider in determining the extent of the erosion of initial contributions, but offered no explanation why those factors were relevant and how they translated into principles of quantification. A year later, a differently comprised bench of the Full Court offered another explanation for the erosion principle which contradicted the statement of principle in Lee Steere and made no reference to the discussion in Zyk and Zyk. In Aleksovski and Aleksovski (1996) FLC 92–705 Baker and Rowlands JJ said that it is the passage of time which reduces the significance of initial or early contributions. Lee Steere, of course, had said that the passage of time per se does not have this effect. The various rationales for the erosion principle are explored in Patrick Parkinson, 'The Diminishing Significance of Initial Contributions to Property' (1999) 13 Australian Journal of Family Law 52.
[98] (1995) FLC 92–560.
[99] Compare Zappacosta and Zappacosta (1976) 26 FLR 412.
[100] These principles of quantification are more fully developed in Parkinson, above n 97.
[101] (1994) FLC 92–485, 81,054.
[102] See eg, Aleksovski and Aleksovski (1996) FLC 92–705, 83,437 (Baker and Rowlands JJ):
Although there may be a distinction between a contribution made by a party at the commencement of a marriage and a contribution such as an inheritance or damages award which is made in the early years of a marriage, nevertheless the passage of time is the element which reduces the significance of initial or early contributions.
[103] (1992) FLC 92–272, 79,020. On the facts of that case, an inheritance received by the husband within a year of the separation was attributed entirely to him. Consistently with the approach in Bonnici, in Burke and Burke (1993) FLC 92–356 an inheritance which was received by the wife after their separation was attributed entirely to the wife.
[104] The Court indicated that such circumstances 'might include the care of the testator prior to death by the husband or wife as the case may be or other particular services to protect a property': (1992) FLC 92-272, 79,020.
[105] O'Brien and O'Brien (1983) FLC 91–316.
[106] For example, where the wife nursed her severely disabled husband in the years after he suffered injury, the proportion of the damages award which was attributable to the need for nursing care for the relevant period of the marriage was treated as a direct contribution by the wife, because in providing those services without payment, she had contributed to the conservation of the damages award. The money would otherwise have had to be spent on providing a nurse for the husband : Zubcic and Zubcic (1995) FLC 92–609.
[107] (1981) FLC 91–069.
[108] (1995) FLC 92–644, 82,511.
[109] Irène Théry, '"The Interest of the Child" and the Regulation of the Post-Divorce Family' (1986) 14 International Journal of the Sociology of Law 341.
[110] (1989) FLC 92–003.
[111] Ibid 77,173.
[112] For example in Collins and Collins (1990) FLC 92–149, 78,043–2 a windfall gain of $12 million following separation was considered in terms of s 75(2) factors.
[113] (1989) FLC 92–010. For a full analysis see Parkinson, above n 86.
[114] (1989) FLC 92–010, 77,292.
[115] Family Law Amendment Bill 1983, Second Reading Speech by Senator Gareth Evans, 1 June 1983. The speech refers to the relevant clause (31) but only to explain the power to adjourn s 79 proceedings which was also introduced by that clause.
[116] [1984] HCA 21; (1984) 156 CLR 605, 607.
[117] Justice Carter in Figgins and Figgins (Unreported, 2 April 2001) [210] sought to draw a distinction between intention and effect when she argued that whatever the intent of the 1983 amendment, the effect was to create the homemaker contribution as a factor to be evaluated in its own right without reference to the asset pool. It is legitimate for courts to find that the effect of a legislative provision is contrary to its intent, but this is only where it is not possible to read the provision consistently with that intent: see, eg, Higgon v O'Dea [1962] WAR 140.
[118] (1977) 34 FLR 518.
[119] [1978] FamCA 68; (1978) 33 FLR 196.
[120] (1983) FLC 91–364, 78,446.
[121] [1978] FamCA 68; (1978) 33 FLR 196.
[122] Ibid 204.
[123] (1983) FLC 91–364, 78,446. In Ashton and Ashton (1986) FLC 91–777, 75,658–9, Strauss J did express the position in wider terms. He said that as a result of the 1983 amendment, 'the contribution to the welfare of the family is not to be seen necessarily as a contribution to property' but that it is 'something apart' from property. However, his assessment of the value of the wife's contributions in that judgment does not indicate that he considered that any major change from the pre-existing case law had been made. Indeed, he suggested that financial contributions by the husband were also a contribution to the welfare of the family which had to be considered in assessing the contributions of the wife. In Strauss J's view then, the homemaker contribution had a comparator which guided quantification.
[124] [1984] HCA 21; (1984) 156 CLR 605, 636.
[125] Ibid 610.
[126] Ibid 625.
[127] Ibid 647.
[128] Ibid 641.
[129] This passage was from an unreported judgment, but was quoted by the Full Court on appeal in that case: [1987] FamCA 51; (1987) 12 Fam LR 139, 141.
[130] (1993) FLC 92–335, 79,572.
[131] Ibid .
[132] This view is shared by Thorpe LJ in Lambert v Lambert [2002] EWCA Civ 1685 (Unreported, Thorpe, May LJJ and Bodey J, 14 November 2002) [45]. In the context of discussing special contributions, he wrote: 'Examples cited of the mother who cares for a handicapped child seem to me to be both theoretical and distasteful. Such sacrifices and achievements are the product of love and commitment and are not to be counted in cash.'
[133] (1997) FLC 92–757.
[134] The origin of the idea of treating domestic violence as an issue about contributions is in Juliet Behrens' influential article, 'Domestic Violence and Property Adjustment: A Critique of 'No Fault' Discourse' (1993) 7 Australian Journal of Family Law 9.
[135] Justices Fogarty and Lindemayer established the principle that
where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79 ((1997) FLC 92–757, 84,294).
The Court offered no explanation of how this could be assessed or quantified. See also Doherty and Doherty (1996) FLC 92–652. For an analysis of a sample of unreported decisions, see Sarah Middleton, 'Domestic Violence, Contributions and s 75(2) Considerations: An Analysis of Unreported Property Judgments' (2001) 15 Australian Journal of Family Law 230.
[136] On the trial judge's decision see the Full Court, (1997) FLC 92–757, 84,295.
[137] The substantial award based on homemaker contributions in Kennon may be contrasted with a relationship of similar length in Bushby and Bushby (1988) FLC 91–919, in which the parties' marriage lasted four years and produced no children. The Full Court decided the issue on the basis of the parties' respective financial contributions, and made no order for property alteration in the wife's favour.
[138] (1997) FLC 92–757, 84,299.
[139] Seidler v Schallhofer [1982] 2 NSWLR 80, 103.
[140] In subsequent cases, this passage has been quoted and trial judges have examined the extent to which spouses have provided each other with emotional support, making findings of fact on such matters. See, eg Carter J in Figgins and Figgins (Unreported, 2 April 2001) [266], [281].
[141] (1997) FLC 92–757, 84,300.
[142] (1999) FLC 92–844, 85,881.
[143] (1996) FLC 92–705.
[144] Ibid 83,443.
[145] (1992) FLC 92–272, 79,020. See also Burke and Burke (1993) FLC 92–356.
[146] (2000) FLC 93–060.
[147] Interestingly, Kay J's stance on the assessment of contributions is the diametrical opposite of the position taken by Mahoney JA to the same issue in the Court of Appeal in Wallace v Stanford (1995) 37 NSWLR 1, 15. This was a case under the De Facto Relationships Act 1984 (NSW). This Act adopts the same approach of assessing contributions, although there is no equivalent to the s 75(2) factors. Judge Mahoney used the hypothetical example of a lottery win acquired the day before or after separation and indicated that the other party to the relationship could not establish a contribution in relation to that money other than if the ticket was jointly owned or came from joint funds.
[148] (2002) FLC 93–110.
[149] Ibid 89,047.
[150] [2002] FamCA 688. For a commentary on the case, see Justice Alistair Nicholson and Rebecca Wood, 'Resolving Property Disputes—An Anglo-Australian Contrast', (Paper presented for the Family Law Practitioners' Association of Western Australia at Perth Zoo Conference Centre, South Perth, 16 November 2002). The Chief Justice co-authored the majority judgment in this case.
[151] [2002] FamCA 688, [82]; Carter J (Unreported 2 April 2001) [140].
[152] Figgins and Figgins (Unreported, Carter J, 2 April 2001).
[153] [2002] FamCA 688, [75].
[154] [2000] UKHL 54; [2001] 1 AC 596.
[155] White was a case of a 33-year marriage involving a farming business built up during the course of the marriage. There was a gift from the father (initially in the form of a loan), but no inheritance. Justice Ellis thought White had no relevance. Neither counsel for the parties had referred to White in their submissions until asked to do so by the Court.
[156] In particular, Nicholson CJ and Buckley J were critical of the decision of a differently constituted Full Court in JEL and DDF (2001) FLC 93–075 concerning the division of property built up in the course of an 18 year marriage.
[157] [2002] FamCA 688, [129–130].
[158] Lambert v Lambert [2002] EWCA Civ 1685 (Unreported, Thorpe, May LJJ and Bodey J, 14 November 2002).
[159] [2002] FamCA 688, [145].
[160] McLay and McLay (1996) FLC 92–667 at 82,901 (Nicholson CJ, Fogarty and Dessau JJ).
[161] (1996) FLC 92–705.
[162] For example, in Heath and Heath; Westpac Banking Corp (1983) FLC 91–362, Nygh J took account of the wife's contributions towards the care of the husband's elderly parents and hence towards the bequest which he received from them. Justice Nygh found that '[t]o the extent that the bequest was an expectation, her efforts went towards the acquisition of that expectation' (ibid 78,430).
[163] For example, in De Angelis and De Angelis (Unreported, 12 November 1999), the husband's contributions to the maintenance and improvement of two old properties while they were still owned by the wife's mother and aunt, were treated as a contribution to the expected inheritance under s 75(2).
[164] James and James (1978) FLC 90–487. The couple had lived for thirteen years on a farming property belonging to the husband's father. He assisted the father in running the farm and expected to inherit it on his father's death. This inheritance came after the separation.
[165] (1989) FLC 92–010.
[166] Jody Hughes, 'Repartnering after Divorce: Marginal Mates and Unwedded Women' (2000) Family Matters no 55, 16.
[167] De Sales v Ingrilli [2002] HCA 52.
[168] Family Law Council, Submission on the Discussion Paper ‘Property And Family Law: Options For Change’ (July 1999).
[169] Ibid 62–3.
[170] 'the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment'.
[171] 'the eligibility of either party for a pension, allowance or benefit ... under any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party'.
[172] (1995) FLC 92–635.
[173] Matthew Gray and Bruce Chapman, 'Foregone Earnings from Child-Rearing: Changes between 1986 and 1997' (2001) Family Matters no 58, 4.
[174] Kathleen Funder, 'Australia: A Proposal for Reform' in Lenore Weitzman and Mavis Maclean (eds), Economic Consequences of Divorce: The International Perspective (1992), 143. See also Funder, Harrison and Weston, above n 46, 204–9.
[175] For a review, see Hakim, above n 3, ch 7. See also Bob Birrell and Virginia Rapson, A Not So Perfect Match: the Growing Male/Female Divide, 1986–1996 (Centre for Population and Urban Research, Monash University, 1998): Women tend to limit their search to men of equal or higher educational standards. Women's increased educational opportunities and workforce participation, and the deterioration in men's employment stability are resulting in a growing number of young men without a stable income who cannot find partners .
[176] Such issues are considered in detail by Tom Oldham in 'Putting Asunder in the 1990s' (1992) 80 California Law Review 1091 (review essay).
[177] The median net asset value in the Australian Divorce Transition Project was $124,101, excluding superannuation (1997 dollars). 80% of the respondents had assets below the 1997 Social Security Pensions Assets Test of $268,500: Grania Sheehan and Jody Hughes, ‘Division of Matrimonial Property in Australia’ (Research Paper No 25, Australian Institute of Family Studies, Melbourne, 2001) 11.
[178] I have discussed it in Parkinson, above n 86.
[179] See Ilene Wolcott and Jody Hughes, ‘Towards an Understanding of the Reasons for Divorce’ (Working Paper No 20, Australian Institute of Family Studies, Melbourne, 1999) 14–18.
[180] Ibid 8–9.
[181] General Social Surveys 1972–1993 (Chicago: National Opinion Research Center, 1994), cited in Steven Nock, Marriage in Men's Lives (1998) 22.
[182] [1984] HCA 21; (1984) 156 CLR 605, 646.
[183] Brian Simpson, 'The Common Law and Legal Theory' in William Twining (ed), Legal Theory and Common Law (1986) 21.
[184] Historically, there have been a number of different types of community property regime. In Roman-Dutch law all the property of the parties was treated as jointly owned, including premarital property and property acquired by inheritance. Most community property regimes now are based upon the ganancial system which originated in Spain. Property acquired by the efforts of the parties during the marriage is treated as community property and is jointly owned. Property owned prior to the marriage is regarded as individual property, as is property acquired by gift or inheritance to one party. Special rules exist for the treatment of commingled assets (those which represent in part individual property and in part community property). A variation of this is the deferred community property regime of countries such as Germany.
[185] A basic distinction between marital and non-marital property has been adopted by the majority of separate property jurisdictions in the United States. A further nine are community property jurisdictions. See Grace Blumberg, 'The Financial Incidents of Family Dissolution' in Sanford Katz, John Eekelaar and Mavis Maclean (eds), Cross Currents: Family Law and Policy in the United States and England (2000) 387, 391 fn 24. See also Thomas Andrews, 'Income from Separate Property: Towards a Theoretical Foundation' (1993) 56 Law and Contemporary Problems 171, 173–4. In the US, the clear differentiation made between marital property and separate property in most states obviates the need for any detailed analysis of the relative contributions of the spouses to the marriage: Oldham, above n 176, 1115.