There is no question that initial contributions are relevant in a property settlement. The significance and weighting that will be given to an initial contribution by one party to a relationship depends on the size of the contribution, what it was used for, and the myriad of contributions made by the other party during the marriage / de facto relationship. But what about contributions prior to two parties commencing living together? Are contributions made prior to a de facto relationship considered?
Read on to learn the answer to this question.
Are contributions made prior to a de facto relationship considered?
The short answer is yes, contributions made prior to a de facto relationship may be relevant.
What the cases say about contributions made prior to a de facto relationship
In MacKinnon & Talbot [2022] FedCFamC2F 1738, the de facto husband made an application for property settlement. The De facto husband was a 62 year old construction worker and the de facto wife was a 60 year old medical professional. There were no children of the relationship, but the de facto wife had a child (“D”) from a previous relationship.
The parties cohabited between 2009 and 2015 such that it was agreed that there was a 6 year de facto relationship.
The Husband’s case was that his regular non-financial contributions including being ‘regular, he says daily visitor’ to the de facto wife’s home since 2005. The de facto husband claimed pre-cohabitation contributions including painting, oiling floors, cleaning bathrooms, kitchens and windows as well as carrying out renovations ultimately found by the court as not being ‘any major structural repair but rather ‘detailing improvements.’
The de facto husband also asserted he made daily contributions to the parenting of D from 2005 onwards, including dropping D to and from school, looking after him on weekends while the de facto wife worked, taking him to sports training and sports events, attending school functions and assisting with school projects.
The Court examined the relevant authorities with respect to contributions made prior to a de facto relationship:
- In Lozanov & Lozanov [1994] FamCA 60, a ground of appeal before the Court was that the trial Judge erred in holding that payments made by the Respondent for the wedding ceremonies were contributions under section 79(4) because the contributions were made prior to any cohabitation and the expenses did not have a sufficiently relevant connection with the subsequent marriage. The court held in that case, that:
“… Contributions made by parties prior to their marriage, whether or not they are cohabiting, can be treated as coming within s. 79 provided that the parties subsequently marry and provided that the matters in question have a sufficiently relevant connection with the marriage to be treated in that way. The same must of course apply to contributions made by parties prior to commencement of their de facto relationship provided that the parties subsequently enter into a de facto relationship that brings them within the jurisdiction of the court under section 90SM.” - In Hamilton & Thomas [2008] FamCAFC 8 the Full Court held that cohabitation is not a necessary ingredient in order to consider pre-marriage contributions.
- In, Hsiao v Fazarri [2020] HCA 35 the High Court approved the Trial Judge’s finding and made clear that contributions made prior to marriage or a de facto relationship may also be taken into account. In that case, the contribution was a gift of a portion of real property made by one party to the other in April 2014, where the parties married in August 2016 and did not form a de facto relationship prior to the marriage. the contribution was held to be a financial contribution made prior to a de facto relationship to the acquisition of real property.
After examining the relevant authorities with respect to the relevance of contributions made prior to a de facto relationship, the Court concluded as follows:
- The examination of contributions during a de facto relationship that at some point becomes a marriage is analogous to contributions made prior to a de facto relationship that at some point becomes a de facto relationship;
- The above cases make clear that contributions made during the de facto relationship and prior to marriage can be relevant contributions.
The Court then made findings in the case of Mackinnon & Talbot, as follows:
- the Applicant husband made a contribution to the Respondent Wife’s properties prior to cohabitation and thereafter until its sale.
- The Applicant involved himself in the day-to-day parenting of Mr D.
- The Court held that these contributions were not contributions for consideration under section 90SM(4)(c) but were a matter that the Court court could take into account under section 90SM(4)(e) when considering the matters in section 90SF(3);
- The court held that the contributions of the parties to the $1.3M asset pool were 12.5% to the Applicant de facto Husband and 87.5% to the Respondent de facto wife.
- “I do not consider that the Applicant’s engagement with the parenting of Mr D in the period from 2005 until commencement of the cohabitation around mid-2009 should be a component of assessment of appropriate adjustment for this consideration, as I consider that during that period his actions were in line with those of a person in a non-cohabiting romantic relationship with a child’s parents who forms a relationship with a child and assists with the child’s parenting and occasional financial support, particularly in relation to outings and regular attendance at extracurricular activities, and that such does not have the necessary relevance in connection to the subsequent de facto relationship to be so considered. The Applicant’s participation in Mr D’s parenting and support during the six years of the de facto relationship is a matter that finds in favour of an adjustment in his favour.’
- The Court held that an adjustment in favour of the applicant de facto husband of 5% was appropriate in considering whether under s90SF(3) it was just and equitable to make an order such that the property pool be divided 17.5% to the applicant de facto husband and 82.5% to the Respondent de facto wife.
What have we learnt regarding contributions made prior to a de facto relationship?
Contributions prior to cohabitation in a de facto relationship may be relevant to the court’s assessment as to the contributions of the parties to the asset pool and whether it is just and equitable to make an order altering the interests of the parties in their property.
Contributions made prior to cohabitation in a de facto relationship may be relevant provided that:
- The parties subsequently enter into a de facto relationship, such that the Court has jurisdiction to make orders with respect to the parties property;
- The contributions have a sufficient relevant connection with the de facto relationship.
Parenting and homemaker contributions made prior to commencement of a de facto relationship are more tricky and the Court will look at them closely to determine whether there is a causal connection with the subsequent de facto relationship.
Contact us
If you have any questions about contributions you have made prior to commencing your de facto relationship and how they are taken into account, contact our office to book a reduced rate initial consultation with one of our experienced Brisbane Family Lawyers and we will provide you with tailored advice in relation to your unique circumstances.
