Stepchildren and Property Settlements: Does Caring for a Stepchild During Marriage Matter?
As blended families are becoming increasingly common, when partners separate, people often ask if and how contributions that they have made towards their stepchildren during the relationship are considered when determining the division of assets in a matrimonial property settlement.
What impact, if any, do such contributions have on the division of assets after separation?
Section 79 of the Family Law Act 1975 (Cth) (“the Act”) outlines several factors that the Court must take into account when determining the division of assets between the parties following the breakdown of a relationship. These factors include:
- the financial and non-financial contributions made directly or indirectly by or on behalf of a party to the relationship to the acquisition, conservation or improvement of any of the property of the parties;
- the contribution made by a party to the relationship to the welfare of the family constituted by the parties to the marriage and any children of the relationship including any contribution made in the capacity of homemaker or parent; and
- the relevant future needs of the parties referred to in subsection 75(2) of the Act so far as they are relevant (for example, the age of the parties, their health, any income earning disparity between the parties, the care arrangements for children under the age of 18 years, any child support that a party to the relationship has provided, is to provide, or might be liable to provide in the future, for a child of the relationship etc).
Although the Act does not specifically mention “stepchildren”, section 75(2)(o) provides that the Court can take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account…”.
Case law (for instance Robb & Robb [1994] FamCA 136 and Jarrott & Jarrott [2007] FamCA 1002) supports the position that contributions to a non-biological child should be taken into consideration when determining the parties’ property settlement matter.
In essence, a spouse or partner who provides for financial expenses for non-biological children (such as payment of school fees, buying gifts for them or their friends and paying for holidays) or non-financial contributions (such as taking the children to school or their extracurricular activities) can be factored into consideration when determining how the asset pool should be divided.
In some circumstances, a party who has cared for and/or financially contributed towards a non-biological child can successfully argue that they should get an adjustment in their favour for such contributions. This, of course, must be taken into consideration in conjunction with the other contributions factors to determine how much weight should be applied to this contribution.
If you have separated from your partner, we recommend that you obtain legal advice about how your contributions may be recognised when determining how the asset pool should be divided between you and your former partner. Contact Michael Lynch Family Lawyers on (07) 3221 4300 or [email protected] for a fixed-fee no obligation initial consultation.
