Australian divorce law robs talented spouses
THE AUSTRALIAN Kate Legge | May 03, 2008
THE legal notion that sports stars, artists and professionals with exceptional talent deserve better than a 50-50 split in divorce settlements is being watered down under pressure from the equal rights lobby, a top judge has warned.
Speaking before his retirement yesterday from the Family Court, judge Paul Guest said failing to take into account a husband or wife's exceptional talent or skills in divorce settlements risked the "dumbing down of family law".
Justice Guest stressed that special contributions were not relevant to the vast majority of divorces. "In the case of Mary and Joe citizen where she stays home while the children are young and he goes to work to pay the mortgage, the split of their assets is generally 50:50," he said.
"But there comes a time when you have to look at other areas. If say, Pete Sampras's divorce was coming through, is his wife entitled to half or did he make a special contribution? Our act validates recognition of an individual's right to the value of their innate skills and intelligence.
"But the doctrine's being watered down, weathered away in the push for equal rights.
"It's the dumbing down of family law through trying to make everyone happy, everybody normal, when we're not equal. We're born unequal."
The judge, who accuses "feminists and equal-rights advocates" of watering down the doctrine, denies his view is sexist. "It's not discriminatory to insist that special contributions should sit alongside the weight given to the contribution of homemaker and parent, a contribution that afforded the other party the chance to pursue his or her endeavour," he said.
"It's fair and just and equitable to take both these contributions into account. We have a contributions-based act. If it just said that marriage is equal then that's fine, but it doesn't."
Under section 79 of the 1975 Family Law Act, both financial and non-financial contributions to a marriage must be considered and assessed on their merits, apart from outside contributions, such an inheritances or gifts.
But in recent years the court has moved to recognise homemaker and parent contributions, usually by the wife, as carrying equal weight to the earnings and accumulation of financial assets by the breadwinner.
Marriage is seen as a shared venture, with both partners sharing losses and liabilities and therefore, the gains and earnings accumulated during the partnership. Only a small number of landmark cases have awarded special loading to an earner who, through entrepreneurial flair and skills, has made a significant contribution.
The decision in Lynch v Fitzpatrick in 2001 is perhaps the high water mark in Australia's legal history on the doctrine of "special contributions".
In that judgment, Justice Guest and another judge replaced the 65:35 division of a $36.7million asset pool with a decision to award 72.5:27.5 in favour of the husband, a geologist, who amassed considerable wealth through a series of business transactions.
The wife sought leave to appeal to the High Court, but her bid was dismissed.
Justice Guest told The Weekend Australian this week the husband "found a goldmine with his brains, his geological genius. He found the site. He put together the venture despite knockbacks. He got the finance. And he made a mine".
"You've got to stand up for the doer, the one who tries, the person in the arena," he said.
Justice Guest has long rallied for recognition of exceptional skills and effort being taken into account in divorce settlements.
In a 2005 paper entitled Never Mind the Law, Feel the Politics, he argued the doctrine should be "an orthodox and enduring feature of family law inthe Australian and English jurisdictions".
The principle acknowledges that "in some few cases the production of discrete capital or assets is not really a collective effort ... (in) the partnership of marriage," Justice Guest wrote.