Short Marriages in Family Law
SHORT MARRIAGES IN FAMILY LAW
Parties to a short marriage in family law proceedings are entitled to seek orders to divide the property of the parties. However the Court has applied a range of principles to relatively short marriages that differ significantly from marriages that are for a longer period. The court generally views a marriage of under five years as a short marriage.
However the court can also take into account how long the couple lived together before getting married. This is because the Family Law Act recognises defacto relationships in much the same way as married relationships. So taken together the length of the relationship may not be short.
In Hooper & Hooper [2017] FCCA 124 Judge Terry stated at [353]
The court is under no obligations to equalise the positions of the parties especially after a short marriage
However pursuant to section 75(2)(k) of the Family Law Act the court will take into account the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
Separate Accounts
Often in short marriages the parties maintain separate financial accounts.
In Napier & Scully [2016] FCCA 1919 Judge Scarlett stated at [18]
In some cases related to short marriages , however, courts adopt an asset-by-asset approach.
The court can also take into account whether separate accounts have been maintained by the parties.
In McMahon & McMahon (1995) FLC 92-606 the Full Court favoured an asset-by-asset approach noting that factors such as the short duration of the marriage and its unhappy nature together with strict division of assets and finances and the methods of dealing with finances during the relationship are considerations which might favour an asset-by-asset approach.
Of course each case will turn on the particular facts of the case and it is important to weigh up all of the factors of the relationship.
Initial Contributions
The court can also take into account initial contributions of the respective parties and whether an increase to the property pool has been brought about by market forces. The weight of the initial contribution by the contributor will be greater where the increase in value has come about by market forces as opposed to the contribution of either party.
Financial versus Non Financial Contributions
The court will take into account financial and non financial contributions of the parties during the marriage.
In Eagans & Rennell [2018] FCCA 3564 Judge Mercuri stated at [335]
As is clear from section 79(4) of the Act, the court is required to have regard not only to financial contributions but also other contributions which have been made either directly or indirectly to the acquisition, conservation or improvement of any property of the parties, as well as contributions made by the parties to the welfare of the family including any contributions made in the capacity of homemaker or parent
The Full Court in Bushby & Bushby (1988) FLC 91-919 makes it clear that in short marriages where there are no children, the court must place significant weight on the financial contributions of the parties.
Increase in Value of the Matrimonial Home
It is often the case that during a short marriage that the matrimonial home increases in value. In cases where property to which both parties have contributed appreciates as a result of causes unrelated to the specific contributions of either party, the court generally concludes that neither party has any special claim to the increase and that they should share in the increased value to the extent of the proportional interest in the property awarded to each.
In Zappacosta v Zappacosta [1976] FamCA 56; (1976) FLC 90-089 Justice McCall stated
if a property appreciates, as obviously this one has, but not due to any particular effort or act of either of the parties, then the reason why the property did so appreciate is not relevant to the question of what interests the court may decide that the parties to the marriage should have in it when exercising jurisdiction under section 79 of the Act. It is simply a windfall and, accordingly, in my view neither party has any greater or lesser claim to the benefits of the windfall.
In Zyk & Zyk [1995] FamCA 135; (1995) FLC 92-644, the Full Court after referring to Zappacosta and Wells noted:
Those cases were concerned with the situation where there has been an increase in the value of a property of the parties during the course of the marriage arising from some outside circumstance such as rezoning and which occurred independently of any activity of the parties. Those circumstances are often generally referred to as a “windfall” and were treated in that way in those cases, rather than considering them as contributions
Conclusion
If you are seeking property orders and you have been a party to a short marriage then it is important that you are aware of the legal principles that the court takes into account when determining what is a just and equitable division of property.
Leigh Finch is a Barrister admitted into the Supreme Court of NSW and regularly appears in the Federal Circuit and Family Court of Australia in family law matters. Leigh Finch accepts direct access briefs in family law proceedings. Leigh also appears as a defence Barrister in criminal law proceedings having appeared in jury trials. Leigh's practice also encompasses civil matters and human rights proceedings.
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