Weekly Snapshot Issue: 45 – 13 September 2019

Case we’re reviewing…

Who should be attributed for lump sum contributions derived as a result of an insurance payout during a relationship? Especially in circumstances where the decision to take out insurance was a joint decision and the premiums were paid out of a joint account? The recent 2019 decision of the Full Court of the Family Court in the case of Falcken & Weule discussed this issue in detail and found that as the authorities make clear, whilst a joint decision to take out insurance is a contribution by both parties, none of the cases ruled that the contribution should be regarded as being anywhere close to equal. The reality is, as with any form of contribution, insurance payouts are not assessed in isolation but as part of the myriad of contributions.

In this case, the wife received approximately a quarter of million dollars after having suffered a severe stroke which left her with a serious permanent disability. This contribution was calculated to be 13% of the property pool.  The Husband in this case sought that that payout be considered as a joint contribution. The primary judge at trial found that, but for the insurance payout, a fair division of the net pool of assets would have been 50/50 between the parties. After having considered some matters, he concluded that the property interests be divided 53% to the wife, and 47% to the husband.

The Full Court at appeal referred to earlier authorities in noting that it must be remembered that the wife’s quality of life has been permanently and significant reduced and ordinary notions of justice and equity require that her contribution of the insurance claim be recognised appropriately. The Court also referred to Chief Justice Thackray’s decision in the case of Yeates and Yeates [2013]that payment of insurance premiums cannot be compared to contribution to a superannuation fund and that the sad reality that the money became available as a result of one of the parties’ misfortunes and ill health cannot be ignored.Interestingly in this case, the primary judge found that but for the contribution of the disability insurance payment, the parties’ contributions, overall, would have been equal. 

Therefore, if the husband’s contention as to the approach of the primary judge was correct, a 13 per cent adjustment ought to have been made to reflect the specific contribution of the disability insurance payment. That was not what occurred. Instead of the contributions being found to be equal, they were found to favour the wife by only three per cent, leading to the property division of 53 per cent to the wife and 47 per cent to the husband.

This reflects the fact that contributions are not assessed in isolation, but as part of the myriad of contributions made by the parties throughout the relationship.

Film we’ve enjoyed…

Currently available on Netflix, Manto tells the story of the Indo-Pakistani writer, Saadat Hasan Manto. His short stories and political stance found him prosecuted on several occasions by Indian, Pakistani and British authorities but he never succumbed and continued to write his seemingly obscene reflections of society. What we found amazing was how relatable his works are to the issues of modern society, despite having written at the time of the India-Pakistan Partition in the late 40’s.  

Quote we’re pondering…

“Many people don’t have any opinions on a lot of things… until they’re asked about them!

At which point, they decide to cobble together a viewpoint from half-remembered hearsay and other mental debris; treating this new, makeshift opinion as though it were a meticulously researched dissertation”.

  • G_S_Bhogal from Twitter.

History fact we’re intrigued with…

In 1467, Hans Talhoffer wrote “Fechtbuch” (Martial Arts Manual) with illustrated instructions and commentary on how trial by combat was used as a method to settle disputes between husband and wife in medieval Germany. The woman stands free and has a cloth swing with a stone in it that weighs four or five pounds. To make it more fair, the husband stands in a hole up to his waist and his club is as long as her sling. Whilst this of course doesn’t take place in modern society, the theatrics and drawn out family court battles between parties today sadly often resemble gladiator style duels.

Masters of Success…

Leave a Reply

Your email address will not be published. Required fields are marked *