Can you keep your pre-marital assets?

People going through a separation often wonder whether they are entitled to more of the total asset pool if they brought a property prior to the relationship commencing. Many spouses also have the following mind set: “If I had the property before we were married, why shouldn’t I get to keep it after we separate?”

Recommendation

To seek legal advice. As a result of the below points and the “myriad of contributions” that the court considers when assessing how an asset pool should be divided between parties, the short answer is – it depends on the circumstances and the contributions of the parties during the marriage. If you are going through a separation and have questions in relation to your entitlements or the division of your assets, our experienced and caring family lawyers are here to provide advice and guide you through the process.

Background

While the Family Court and Federal Circuit Court will certainly consider the initial financial contributions of the parties at the commencement of the marriage or defacto relationship, there are a number of other factors that the court also considers when determining how an asset pool should be divided between spouses, such as the contributions by the parties over the course of the relationship. These factors are set out in various sections of the Family Law Act 1975. [1]

A recent case in the Family Court of Australia (Barnell v Barnell [2020]) confirmed that the assessment of contributions under the Family Law Act is “not a mathematical exercise” , rather it involves some estimation and discretionary assessment from the court, as some of the contributions are non-financial and are not able to be easily quantified in money terms. [2]

The court will take into account:

• Financial Contributions: The court will consider direct financial contributions such as; who purchased the property, who contributed to the mortgage (if any), who paid for the maintenance of the property (rates, taxes etc) and any other indirect financial contributions to the property over the course of the marriage. [3]
• Non-financial contributions: In addition to the financial contributions to the property, the court will also consider contributions such as who carried out tasks for the upkeep of the property such as mowing, painting etc and who managed the property. Non-financial contributions may be significant, particularly where a spouse has spent a significant amount of time or labour tending to a property during the marriage. [4]
• Contributions as a ‘Homemaker’: The court will consider the contributions of a spouse in the role of homemaker, which may include cooking, cleaning, washing, ironing, caring for the children etc. In the recent decision in Barnell v Barnell [2020] the court referred to a previous observation of the court, [5] which confirmed that there does not have to be a causal relationship between the contributions as a homemaker, and any financial result. This means that it is enough for a party to have contributed in the capacity of a ‘homemaker’, they are not required to provide that those contributions resulted in any financial benefit or improvement to any property. [6]
• Other Considerations: The court would also consider the impact of any distribution of property on the future earning capacity of the parties, and any matters to be considered under section 75(2) in terms of spousal maintenance. [7]



The court in Barnell also highlighted that it was important not to ‘quarantine’ a contribution, rather all the contributions should be considered holistically, be it financial, non financial or as a homemaker. Accordingly, even if you do bring a property into a relationship at the start of a marriage, that initial contribution will be considered together with all other contributions during the marriage.

In Barnell , the primary judge gave separate consideration to a property that was owned by the husband prior to the marriage, as a result the matter was remitted for a further trial as the primary judge failed to treat the property as part of the “myriad of contributions” of the parties throughout the marriage.

[1] Family Law Act 1975 (Cth) ss 79, 90SM.

[2] Barnell v Barnell [2020] FamCAFC 102

[3] Family Law Act 1975 (Cth) ss 79(4)(a), 90SM(4)(a).

[4] Family Law Act 1975 (Cth) ss 79(4)(b), 90SM(4)(b).

[5] Dickons v Dickons (2012) 50 Fam LR 244

[6] Family Law Act 1975 (Cth) ss 79(4)(c), 90SM(4)(c).

[7] Family Law Act 1975 (Cth) ss 79(4)(d)-(g), 90SM(4)(d)-(g).

This article was co-authored by Law Cadet Taylah Jensen.

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