Financial s 79(4)(a) and non-financial s 79(4)(b) FLA 

1. Direct or indirect: 

• Direct financial contributions to the ‘acquisition, conservation, or improvement’ of property e.g. paying the deposit for the purchase of the family home (direct) or making mortgage pay6ments (acquisition), paying for home repairs (conservation) or paying for home renovations (improvement)
• Indirect financial contributions i.e. paying for household expenses e.g. water, gas, electricity bills and council rates.

In the Marriage of Pellegrino [1997] FLC 92-789

• Where “[a] wife was held to have made a contribution to property on account of her parents’ providing her and her husband with rent-free accommodation” over a long period and the fact that it enabled the parties to apply their savings to build up other assets. Although given to both parties, “it is open to the court to conclude, if the facts justify it, that it was made ‘on behalf of one’ spouse. Marrickville property?

In the Marriage of James [1978] FLC 90-487

• Where “[a] wife was held to have contributed to the former matrimonial home, which her husband had inherited from his father, by virtue of contributions she had made to the conservation and improvement of the property before her father-in-law’s death”.

Brazel and Brazel (1984) FLC 91-568

• Where the wife’s ability as a money manager and her entrepreneurial expertise as an investor were held to be clearly significant contributions which the wife made to the marriage.

• The reduction of capital indebtedness under a mortgage would be a contribution to the capital value of the property
• Distinction between contribution to acquisition and contribution to improvement – direct financial contribution to acquisition, there is an exact amount of what proportion of total value of property is represented by that contribution. Whereas, improvement may be expensive but only slightly add to the value of property

• Contributions to real property may not be given full weight if they result in overcapitalisation
• “Where only one spouse is responsible for the overcapitalisation, it is considered proper that this party should normally be deemed responsible for the entire net loss” (In the Marriage of Vrbetic [1987] FLC)

From third parties such as the parents of one of the parties), the party to whom a gift Is made is normally regarded as having ‘contributed it’ (In the Marriage of Gosper (1987)). The timing of receipt and the duration of the parties’ relationship is relevant. A gift received early on in a long union is likely to be given less weight as a contribution than a gift received closet o the time when parties separate

Is not a separate legal entity. The legal owner of the trust property is the trustee. Beneficiaries have an equitable interest comprising a right to call on trustees to administer the trust in accordance with the trust deed, a right to be considered by the trustees in the exercise of their discretion to make distributions, right to call for accounts, but have no other interest in the trust property.

• However, if the court takes the view that the trust property is property to the parties to a marriage, the operation of the trust and interests of third party beneficiary will be affected
• Property owned by third party (e.g. trust) will not be treated as property of parties to a marriage unless it can be established that one or both parties has control over the third party (Ascot Investments Pty Ltd (1981))

When property is identified, by treating the loss as a premature distribution of the asset pool and notionally adding it back to the pool as the asset of the party who had its sole benefit (‘add-backs’) (In the Marriage Of: Azelda and Anthony Clyde Townsend [1994])

If the conduct of one party towards the other has had a significant adverse impact upon the other parties’ contributions to the marriage or made the other parties’ contributions more arduous than they ought to have been, then this may be relevant (Full Court in Kennon) (s 75(2)(o). (Note recent domestic violence case law).

Contribution to the welfare of the family – s 79(4)(c)

• The contribution made by a party to the marriage to the welfare of the family and any children of the marriage, any contribution made in the capacity of homemaker or parent