The wife had, as her Honour found, little if any prospect of gainful employment. The fact that the husband was 71 at trial, and the wife 59, was very important in the consideration of that comparison. As an instance of that, the section requires, in particular, a consideration of the respective ‘commitments of each of the parties … necessary to enable’ … them to support themselves. While, in the context of a broad assessment referrable to s 79(4)(e), that may not require a dollar-for- dollar comparison assessment as might be required, for example, in a spouse maintenance case, I am unable to see where her Honour has given any consideration to this important requirement stipulated by s 75(2)(d).
“While, of course, the wife was some 10 years older than she was at the commencement of the relationship and while the wife was, as revealed in the medical evidence before her Honour, suffering from health issues, I am respectfully unable to see how her Honour’s finding that the wife’s earning capacity was unaffected by the relationship was open to her on the evidence before her.” In a similar vein, there can be no doubt that the parties enjoyed a very good standard of living during their relationship; much of that, of course, emanated from the husband’s assets with which he entered the relationship, including what was able to be purchased from his substantial cash reserves and the income derived from them and otherwise by the husband. However, the contrast between that standard of living and the comparative standards of living reasonably open to the parties post orders is nevertheless a relevant matter, and one which, in my view, was not at all considered by her Honour.”
“The respective asset positions of the parties consequent upon an 87.5 per cent/12.5 per cent assessment of contributions [results in] a very significant disparity between the parties. The husband funds his retirement from his assets and resources which remain considerable. There is no suggestion that there will be any change to that in the future. They are the assets, resources and income of a man who is now 72. He lives in a $1.2 million home, has available to him a valuable piece of real property that he uses as a holiday home, and owns a unit subject to a debt, from which he receives income.
… I consider that an adjustment of 7.5 per cent is appropriate. That equates to approximately $294,000. That adjustment would see the wife receiving 20 per cent of the parties’ interests in property and superannuation, or in dollar terms, approximately $786,000. The husband will need to source and pay approximately $663,000.
.. The disparity between the parties’ respective positions of 60 per cent represents, in dollar terms, about $2.35 million. The husband will retain his three pieces of real property, his three cars, his $50,000 worth of furniture, and have cash and superannuation – which is effectively cash – of slightly more than $1 million. The wife is currently in receipt of sickness benefit, has not worked remuneratively for some years and, in all likelihood, will not in the future. She has a number of health issues. It is not contended that the husband has any such issues.
… I consider that the relationship has had a detrimental impact on her capacity to earn income. Her current standard of living is markedly poorer than the husband’s and markedly poorer than that enjoyed by the parties during their relationship. All but about $18,000 of the property retained by the wife is in cash. Thus, from an amount of about $750,000 in cash that she will receive, she will need to re-house and otherwise support herself in the absence of remunerative income. In that respect, I note her age by comparison to the husband’s age.