“Why should I support my wife/partner after we separate when I actually supported her and provided all our assets throughout our entire relationship.”
Unfortunately, you may have a continuing financial obligation to your former partner.
The Family Law legislation provides the basis for a Court determining the financial relationship of parties after separation. The relevant factors taken into account are:
Table of Contents
Length of relationship
The longer the relationship the greater the interest of the other party in the assets acquired during the relationship. This may be qualified by a negative contribution made by one party such as wasting assets and financial resources on such things as gambling, a spendthrift attitude or neglect of the children, family violence and generally acting in a manner that caused financial detriment or hardship in the relationship.
‘What if I accumulate a massive financial estate during the relationship through my hard work and effort when the wife stayed home and enjoyed a lavish lifestyle which I, through my resources and efforts, was able to provide to her. Why should she benefit from my hard work and toil?”
In the past, the entrepreneurial contribution of a party (to the relationship) was recognised as a greater than normal contribution to the acquisition and improvements to the asset base party because of his or her skills and did receive a higher percentage in the net asset. This is based on his or her skills at the arbitrary base of say $1 million dollars or greater and was recognised in this regard.
Recent decisions, however, have changed at this and entrepreneurial skills have little or no recognition in determining the relevant financial interests of the party. If though, one party did introduce significant assets to the financial interests of the parties based on their entrepreneurial skills then this may be considered in it’s merit.
Initial financial contributions
One saving grace is the initial financial contributions of the parties to the relationship. The greater the contribution the greater recognition of that party to the contribution to the net asset base and the greater that parties interest in the division of such asset base.
The value of such financial contributions do diminish with the passage of time because of the overall contributions, financially or otherwise, of the parties to the relationship and after a very long relationship may have little or no value.
“But she only had the household and parenting roles in the relationship and did not seek or have employment or provide income to the assets we acquired.”
Parenting and household roles
Although you may have been the sole income earner in the relationship the court will recognise her contribution of parenting and carrying out the household roles a contribution and will not grant you a higher interest in the assets because of the income you provided and certainly this would be the case if you agreed that your partner should carry out such roles in the relationship.
“But where were only married for a short period of time. How can she claim an interest in my assets.”
Length of relationship
It would be difficult for her to do this if she made no financial contribution to such assets. Alternatively, you may have no interest in the assets she brought into the relationship and if you did not contribute to such assets.
A short marriage would be up to 3 to 5 years. A party may gain an interest for any if greater than this period of time and increasingly so as time goes on.
A child of the relationship
As well if there is a child of the relationship and depending on the future parenting of this child after separation your partner would most likely gain a greater financial interest in the assets. Your financial support of the child would negate the claim of your partner in this regard.
“What if my wife refuses to work after we separate and demands that I continue to financially support her.”
Future financial positions and ability to work
Your future financial positions are important to the Court when determining if there should be any adjustment to your respective interest in the assets.
It is your partner’s ability to work which is the important consideration, not your parties wish not to work. Based on her ability to work the court would look at your future financial positions. The court would look at the assets and financial interest you would receive and your ability to build up the value of such assets in the future. The court would look to your income earning ability bearing in mind it is the ability to work which is the important factor.
If there is a discrepancy in the future financial positions of the parties, taking these factors into account, a party whose future financial position is not as secure as that of the other party will be given a greater percentage interest in the assets the size of such interest depending on the greater the discrepancy in the factors which are taken into account.
A Court could make a future adjustment to the division of the assets taking into account all the relevant factors in your relationship.
So there is no easy answer to the initial concern you raised.
The best advice is to resolve such issues speedily by negotiation after receiving the legal advice or with the assistance of alternative dispute resolution procedures such as collaborative practice, mediation or arbitration. Details of this are on our website.
If you wish to have certainty on the division of the assets in your future relationship then you should consider entering into a binding financial agreement with your partner. We can assist you with this.
If you require assistance we would be only too happy to discuss this matter with you.
