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Have you been caring for your ex-partner’s children from a previous relationship?

 

In the case of Robb and Robb (1995) FLC 92- 555, the wife had two daughters from a previous relationship who lived with her and the husband at the family home for approximately 10 years. On appeal, the Court found that the wife had a legal duty to maintain the children of her prior marriage whilst the husband had no legal duty to maintain these children at any time during the marriage. The Court found that the husband had no legal duty pursuant to section 66G of the Act which provides that a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court determines that it is proper for the step-parent to have that duty. None of those pre-conditions existed in this case.

On appeal, the Court found that the wife had a legal duty to maintain the children of her prior marriage whilst the husband had no legal duty to maintain these children at any time during the marriage.

Accordingly, in contributing to the support of these children the Court found that, “the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, we consider the justice of the case clearly required the husband’s contribution to be taken into account under s.75(2)(o).”

In dealing with the weight to be given to the husband’s contribution to the children’s expenses, the Court agreed with the following comments made by the Trial Judge:

The husband’s contribution to the welfare of Kristy and Bianca is a significant matter which the justice of the case requires to be taken into account. After allowance for part of the girls living costs being met from the child endowment received by the wife the husband contributed 60 per cent of the remainder of their expenses; for 11 years for Kristy and 10 years for Bianca. It is a significant contribution and supports an adjustment in his favour which far exceeds $25,000, especially so when one also takes into account his additional non-financial contribution.”

If you have been caring for your ex-partner’s children, we strongly suggest you obtain legal advice about how this contribution may be recognised by the Court when making property orders for the division of assets.

 

Written by Alexandra Finemore, Associate

If you are interested in discussing the matter, please contact Alexandra Finemore of our office to make an appointment by calling 03 9320 3900.

 

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