Property settlement application dismissed

Property settlement application dismissed

Fitch & Lewis

Conclusion

80. The parties’ relationship was conducted at the Husband’s homes in Sydney for the most part, although the parties (and Ms C) also spent time at the Wife’s home in Property W. It was a short marriage and the parties never lived together full time. From the commencement of the relationship, the Wife frequently travelled to Sydney on weekends, often returning to Property W on the Sunday, until the parties married 18 months into the relationship. Thereafter, for approximately 12 months the Wife spent up to 9 days a fortnight in Sydney and the remainder in Property W, before the parties separated in July 2013. The parties then made an unsuccessful attempt to reconcile in December/January 2014, finally attending a final social event together on 26 March 2014.
81. During the marriage, the Husband gave the Wife considerable financial help, apart from meeting the majority of their joint expenses. He has transferred over $340,000 to the Wife, most of which was for her sole benefit. The sum of $75,000 was paid on the understanding he was purchasing a half interest in her property, an agreement that was later abandoned, though the funds were not returned nor requested by the Husband. The Wife gives her reasons for the Husband making payments to her in her Notice Disputing Facts:^[43]
    After cohabiting in (omitted) 2010, I was slowly spending less time in (omitted) and more time in Sydney with (omitted) property being enjoyed by the family on weekends and school holidays. I reduced my work and secured some work in Sydney. I fully maintained the expansive (omitted) property. After paying some lump sums to reduce debt and allow me to work less…Mr Lewis began paying a monthly allowance to me for loss of income, travel costs, and other joint household expenditure and living costs. If I incurred expenses he may “top up” this allowance as shown in items…. I bought household items, food, alcohol, petrol, clothes and gifts for my step daughter etc
    …
82. The Wife gives no details of her actual expenditure on the Husband which was not reimbursed.
83. Despite her claim to have lost income, the Wife’s income did not change in any significant way during the relationship. The Husband’s payments to the Wife were well in excess of any “compensation” that may have been needed to top up her income.
84. When the Husband set up an office space at the Wife’s home, the Husband paid monthly rent to assist with the outgoings on the Property W home. In her Notice Disputing Facts dated March 2016^[44] the Wife says (in relation to rental payments)
    …these amounts were paid to (omitted business) for Office rental in the Property W property at the exclusion of other guests. Claimed as income by me from the (omitted business). …
85. The Wife contends that she did not have guests during the relationship because of an agreement the parties reached. While providing no financial details of what she might have been earning from this business, she says she lost the benefit of income from one regular 3 night a week guest in particular. However, she does not adduce any evidence as to why she was unable to have guests, particularly her regular weekday guest. Ms C says the Property W property comprised four upstairs bedrooms the Wife could have used for her guests. I am not satisfied that the Husband’s use of the cellar for an office had any impact on the Wife’s (omitted) business. I find it noteworthy that the Wife claimed losses from the (omitted) business in her taxation returns throughout the parties’ relationship.
86. Mr Givney submits that^[45]:

…while the Husband was able to provide the Wife elements of a lifestyle that was not previously enjoyed by the Wife, he also had the benefit of the Wife’s company and support during times when he was [apparently] “lavishing” elements of an extravagant lifestyle…the separation brought about the inability of each of the parties to share the other’s home. The issue of the significant contributions made albeit in a short period by the Wife and the gross disparity between each of the parties’ income and means indicates that it is just and equitable for the Court to make an order.

87. Mr Millar submits^[46] that the Court should have regard to the following matters when deciding whether it is just and equitable to make a property settlement order:
    1. The marriage was of short duration extending from 28 April 2012 to 2 July 2013.
    2. Perhaps by reason of the short duration of the marriage, the positions of the parties were not materially different at the end of the marriage as compared with their positions at the beginning of the marriage with respect to their financial circumstances. When the parties met the Husband had assets and liabilities as set out at paragraphs 19, 20 of his affidavit (as set out above). At separation, his property interests were essentially the same, though one item of property had been swapped for another: his property at Property S2 had been sold, the Property E property purchased and then sold using the proceeds to reduce mortgage debt and to buy a share of the property at Property W. The Wife owned her home at Property W, encumbered by mortgage and her third interest in a home unit at Property W encumbered by mortgage and substantial credit card debts. At separation, her position was the same, although at the hearing, her debt on the Property W property had increased because of a refinance done by the Wife earlier this year, and almost 3 years after separation.
    100. The Wife’s financial position was enhanced by financial contributions made by the Husband to her Property W property with respect to building works undertaken and the part-payment by him for the purchase of an interest in the property pursuant to an agreement later abandoned. The Wife retained the funds paid to her by the Husband under that agreement.
    4. When the relationship started, and at the date of marriage, the Wife worked as a (occupation omitted) and she continued to do so at the date of separation and at the time of hearing.
    5. The parties kept their property separate from each other and each retained property registered in his or her own name. Even when the opportunity arose to acquire a property jointly, at Property E, they did not do so. The Wife did not contribute to the purchase price of the property nor did she have any responsibility for the mortgage. The Wife received none of the proceeds of sale.
    6. The parties did not pool their incomes or establish a joint account from which to pay joint living expenses.
    7. The parties never lived together full time. The Wife spent up to 9 days a fortnight with the Husband for approximately 12 months only, spending the rest of her time in Property W. While the Husband paid rent to the Wife for his use of a room at her home, the Wife did not contribute rent to the Husband when staying at his home.
88. I agree with Mr Millar’s submissions. The parties are mature intelligent adults. They chose to conduct their relationship in a particular way, never living together full time and remaining financially independent, while retaining their individual businesses. Each party provided their home for the parties to spend time together, though overwhelmingly the parties spent their time together in the Husband’s properties. The Wife did not pay for repairs or maintenance on the Husband’s homes, although she contributed in a minor way to the purchase of items for the homes from time to time and helped in selecting home decorations. The parties did not conduct their relationship on the basis they would have an interest in the other’s property. There is no evidence to suggest that the Wife was not satisfied with the parties’ financially independent arrangements, and was not adequately assisted financially by the Husband during the relationship. Neither party executed a will in favour of the other. The Husband made the far greater contributions during the relationship.
89. In all the circumstances, I am not satisfied that it would be just and equitable to make an order for property settlement. The Wife’s application will be dismissed.