Determining a Property Settlement – One Asset at a Time?
29
June 2021
The process for determining a property settlement usually involves “pooling” all the property, valuing it and then dividing it as an overall pool (this is called the “global approach”). However, it is open to the court to consider the contribution each party has made with respect to each item of property. This alternative option is referred to as the “asset by asset” approach.
The “asset by asset” approach is not often taken as it usually increases the complexity of a case. There are however, examples of when a court will consider utilising the “asset by asset” approach for some or all of the assets. Such examples, include:
- where a party has received an inheritance later in the relationship;
- where the relationship is very short and the parties have kept their assets separate; or
- where there is a significant amount of superannuation.
The court recently considered a spouses request for an “asset by asset” approach, in a 17 year long marriage.
The Facts:
- The parties were both 74 years of age. They married in 1991 and separated in July 2009.
- During the marriage, the husband predominately lived at his home whilst the wife lived at her property. Except for purchasing a boat and a property during the marriage (both financed by the wife) the spouses did not jointly own any property.
- At the date of the hearing the husband had property valued at approximately $315,000, while the wife had property valued at approximately $4,000,000.
- The husband asked the court to “pool” the property (global approach) and provide his “percentage division” from that. The wife said that the court should adopt an “asset by asset” approach.
Court Found:
- Although it was a long marriage, the couple had really only lived together on weekends and holidays.
- The parties lacked the accumulation of any substantial joint property.
- There was no evidence of “pooling” income. The parties lived separate lives, maintained separate bank accounts and made independent financial decisions.
- The court was persuaded that an “asset by asset” approach in this case was preferable to a “global approach”.
The Court Ordered:
- That each party retain the assets and liabilities in their respective names.
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