Section 75(2) of the Family Law Act allows for several to be taken into account along with contributions of any sort made by each spouse. The entire list is as follows:

– The age and state of health of each of the parties

– The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

– Whether either party has the responsibility of care or control of a child of the marriage younger than 18 years

– Commitments of either party to supporting himself/herself and a child

– The responsibilities of either party to support any other person

– The eligibility of either party for a pension, allowance or benefit (set out in laws of the Commonwealth or States, includes any superannuation fund)

– Reasonable standard of living in all circumstances

– Whether payment of maintenance would allow a party to increase their earning capacity by undertaking an educational course or training

– The effect of any payment on the ability of a creditor of a party to recover a debt

– The extent of contribution to the income, earning capacity, property of the other party

– If either party is cohabitating with another person, the financial circumstances of this

– The need to protect a party who wishes to continue that part’s role as a parent

– Terms of any orders made in relation to the property of the parties or vested bankruptcy property

– Any child support that a party to the marriage has provided or might need to provide in the future

– Terms of any binding financial agreement that need to be taken into account.

Such factors are included and taken into consideration within a property settlement to the extent that they are relevant. Sometimes more than one factor is considered, other times, none of these factors are relevant. Generally, these factors are not considered in high income matters, but they have been on some occasions. For de-facto relationships, the additional factors are outlined in s 90SF(3) of the Family Law Act 1975 (NSW).

When taking s 75(2) Family Law Act factors into account, a monetary value is determined, not a percentage. Factors usually work in the favour of wives, due to children, dependants, responsibilities and other factors including home duties, however, this is not always the case. Section 75(2) factors can pose difficulties however, when traditional gender roles are not adhered to.

A common consideration is that of ‘re-partnering’. The court looks at the new financial position of the ‘re-partnered’ spouse and determines whether this should influence the property determination. A high level of discretion is exercised by the court in determining the impact of these s 75(2) factors.

Furthermore, section 79 provisions can be taken into account in considering additional factors, where future financial positions are examined. In these situations, the court will give regard to the future income earning ability of each party. For example, if an income earning property is sold, the court must consider the implications of this on the spouse/s relying on this income.

Author Bio: Elizabeth Lane has many years experience working with the Family Lawyers Wollongong Prime Lawyers Wollongong.

Category: Legal
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