Did You Make Significant Sacrifices in Your Employment for the Benefit of Your Former Partner’s Career?

Where one party in a relationship has made significant sacrifices in giving up employment in order for the former partner to make a promotion in another place, how does the law treat that sacrifice made by that party when it comes to family law property settlement?

On our last blog, we looked at the decision of the Full Court of the Family Court of Australia in the case of Anson & Meek [2017] FamCAFC 257 where the Husband had brought an appeal against a decision of the primary/trial judge which provided an adjustment to the Wife out of the property pool so that the Husband received 60 per cent of property situated in Australia and the Wife 40 per cent.

In our first blog, we considered certain contributions that had been made by the Husband and how the Full Court treated those contributions.

In this blog, we look at another ground of the appeal against the primary judge’s findings that the Wife’s earning capacity had diminished and she had lost income and income-earning opportunities as a result of the marriage.

The Full Court said that there could be no dispute on the evidence before the primary judge that the Wife “sacrificed her employment” on two occasions when she had moved to Asia in order to live with the Husband and when she later sacrificed an employment opportunity in East Asia so that the husband did not sacrifice an employment opportunity offered to him.

The wife had “not been able to obtain a job of equivalent “status” or salary as the job she sacrificed initially and that the reason for that was inextricably linked to the marriage and its duration. Equally, uncontroversial evidence established that the wife had, over an approximate five year period embracing periods both pre-separation and post-separation actively sought, and applied unsuccessfully for, a number of positions seeking to reestablish her place in the remunerative employment market.”

The Full Court considered that it was appropriate for the primary judge to take account of the evidence that she did and to give it significant weight.

The Husband also contended before the Full Court that the finding of the primary judge that the wife’s reduced capacity to earn income is likely to continue “for years to come and likely for the rest of her working life” did not have sufficient evidentiary support.

The Full Court referred to section 75(2) Family Law Act 1975 (Cth) (FLA) which considers parties’ future needs factors and said that in the context of property proceedings, section 75(2) FLA requires that predictions be made about a variety of future possibilities.

The Full Court said that it is open to a primary judge to make “predictions as to the future based on evidence as to the past and the present and inferences drawn from it”, including predictions regards capacity to earn income and its likely nature and level so long as the prediction, based on inference is supported by evidence establishing past and present facts.

In the case before the Full Court, the Court said that “it is a fact that the nature and “level” or “status” of the wife’s premarriage employment, and the salary, benefits and future prospects commensurate with it, had not been able to be re-established by the wife over a period of nearly eight years to the date of trial. The wife’s position exists despite… genuine and repeated attempts to re-establish” employment equivalent to her premarriage employment.

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