• Do Parenting Arrangements Affect Your Property Entitlements?

Well the short answer is yes.

In most relationships there is a division of roles, duties and responsibilities.  Parties choose to live in a way which will advance their interests either individually and as a partnership.  They make different contributions to the relationship which the law recognises cannot simply be assessed in monetary terms or to the extent that they have financial consequences.  As a result of this, homemaker contributions (usually primarily made by women) are given as much weight as those contributions of the primary breadwinner.

On separation, division of roles and responsibilities that the relationship produced means that the parties are left largely in the same personal situation that they undertook during the course of the relationship.  However, the world at large does not recognise that the value of homemaker contributions as being financially equal to those contributions of the breadwinner.

Post separation, the party who assumed the less financially rewarded responsibilities is at an immediate disadvantage.  They often cannot simply turn to more financially rewarding activities, such as a career that has been put on hold during the course of the relationship, usually for many years.

Whilst the Courts can and do make an adjustment because of the disparity of income earning capacities that has arisen as a consequence of the roles and activities of each of the parties, it is a very difficult exercise to undertake to determine what adjustment would be appropriate in all the circumstances having regard to the length of the relationship and the skills and qualifications that determine income earning capacity of the person who had the primary care of the children during the relationship.

This difficulty has been compounded in cases where there are older children and for whatever reason the parties decide to enter into Parenting Arrangements that provides for the children to spend equal time with each parent.  Not unusually these arrangements are entered into after Family Dispute Resolution mediation and prior to anyone obtaining independent legal advice.

It is proper to take into account the economic ramifications of having the responsibility for the care of children and the quasi economic contributions involved in raising the children which include washing, ironing, cooking, transporting and the like.  It is appropriate to bear in mind salary and income opportunities foregone because of responsibilities to children and appropriate to recognise that such responsibilities have involved sacrifices.

It is, however, very difficult to give economic value to these roles and sacrifices made.

Typically,  the Courts allow a percentage of the asset pool to the parent who has the care and control of the children, precisely what that percentage is depends on a number of factors such as the number and age of the children, what Child Support (if any) is being paid and the size of the asset pool.

What many parents fail to realise is that the adjustment that the Court would ordinarily make to one parent who has the care and control of the children, will no longer be available where the care is shared equally.

Whilst the children should never be seen as a mechanism by which one parent can obtain a larger proportion of the asset pool, when the care of children is shared, it becomes even more important that an appropriate allowance is made to the “stay at home parent” for those sacrifices made during the relationship that has put them in a position where they are financially disadvantaged because they have not been able to pursue a career or develop an income earning capacity as large as their spouses.

It is a dilemma that the Courts need to deal with but it also causes significant trauma and financial stress to the party who is at financial disadvantage as they now need to prove the level of their loss of income earning capacity or career options that has been caused as a consequence of their relationship.  This is not easy to do.

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