BOOTH [2010] FMCAfam 1269

23 November 2010, published 5 November 2014

Property – Long marriage – Initial contribution of home by Mr Booth the primary asset – Contributions assessed 61/39 of $711K pool (1 per cent being for Mr Booth’s care of children) – No s 75(2) adjustment – Husband’s non-disclosure of earnings

FACTS:

Mr. and Mrs. Booth married in 1983.  Mr. Booth owned a house that was worth $70,000. Mrs. Booth had no assets.

They had three children.

They separated in 2009 and the only significant asset was the house, which was now worth $700,000.

Mr. Booth argued that his contributions represented 75% as he contributed essentially the only asset, or 100% of the asset pool.

It was agreed that little work had been done on the house, so the increased value was due to property price increases and not to anything either party had done.

The children lived with Mr. Booth in the house after separation and he supported them financially as Mrs. Booth had limited income.   The children spent limited time with Mrs. Booth.

Mrs. Booth argued that it was a 25 year marriage and that she had contributed as a homemaker, parent and income earner, and that she had also contributed by improving and maintaining the house.

DECISION:

The Judge awarded Mr. Booth 60% of the house for contributions, saying that Mrs. Booth’s contributions are “weighed and balanced with the contributions of the husband during the same period, namely his important contribution in introducing the home which has appreciated so greatly in value during the relationship and his unmatched post separation contribution to the care of the two youngest children, it is reasonable to assess contributions as 61% by the husband and 39% to the wife.  The 1% is my attempt to give some meaningful recognition to the husband’s important post separation contribution to the care of the children.”

Mr. Booth did not fully disclose his income and although he had the care of the children and received limited child support, the Judge did not give him any additional adjustment for Section 75(2) Factors.

TAKEAWAYS:

If an asset was owned before the relationship and is still in the same form at separation, the Court can allocate additional contribution.
Full disclosure is important to ensure the Court has all the facts to consider what is being asked of it.  If Mr. Booth had all the evidence before the Court of his earning capacity he may have received more than 61% of the assets.