Quantifying the Homemaker Contribution in Family Property Law
| Author | Patrick Parkinson |
| DOI | 10.22145/flr.31.1.1 |
| Published date | 01 March 2003 |
| Date | 01 March 2003 |
QUANTIFYING THE HOMEMAKER CONTRIBUTION IN
FAMILY PROPERTY LAW
Patrick Parkinson*
A central question in family property law in Australia is how to place a value on the
homemaker contribution in comparison with other kinds of contribution. The problem is
especially difficult where the property largely consists of assets owned before marriage,
acquired by inheritance, or received after separation. This article explores the relevance of
the homemaker contribution to property division both in marriages and de facto
relationships, challenging the popular assumption that living together per se justifies
significant wealth transfers. It is argued that parenthood provides the most important
justification for property alteration, and that withdrawal from workforce participation
due to the care of children or other family members is the primary concern in evaluating
the homemaker contribution. The article then goes on to explore what the homemaker
contribution meant when the Family Law Act 1975 (Cth) ('the Family Law Act') was
enacted, and how that conceptual coherence has become lost over time. There are now
two different approaches which have emerged to the quantification of the homemaker
contribution in the context of pre-marital property, inheritances, damages awards and
property acquired after separation. These approaches are irreconcilable. The approach
which is now finding favour in the Full Court of the Family Court is one which makes it
impossible for the Court to explain how it has reached its decision on the quantification
of the parties' proportionate shares. Furthermore, it is founded on an interpretation of the
homemaker contribution that Parliament never intended and has not since authorised.
This raises important questions about the legitimacy of the Court's approach to property
division under s 79 of the Family Law Act. The article concludes by offering a new
interpretation of the role which the homemaker contribution should play in the division
of property on relationship breakdown which is consistent with the overall framework of
s 79. It involves two distinct considerations of the homemaker contribution. The first is to
examine how homemaker contributions should be rewarded. The second is to consider
how they should be compensated.
1THE CONTROVERSY ABOUT THE HOMEMAKER
CONTRIBUTION
One of the most controversial and difficult issues in Australian family property law, it
seems, is how to value the homemaker contribution. Section 79(4)(c) provides that the
Court should consider, as one of the factors in property distribution, 'the contribution
made by a party to the marriage to the welfare of the family constituted by the parties
to the marriage and any children of the marriage, including any contribution made in
the capacity of homemaker or parent.' The 'homemaker contribution' is a shortha nd for
this.
2Federal Law ReviewVolume 31
____________________________________________________________________________________
The issue of how to value the homemaker contribution does not only arise under
the Family Law Act. It is also an issue in the interpretation of state and territory laws
concerned with de facto relationships and close personal relationships which, to this
extent at least, mirror the approach adopted in s 79(4) of the FamilyLaw Act. As a result
of an agreement reached at the Standing Committee of Attorneys-General in
November 2002, it is likely there will be a reference of powers from the States over the
property of non-married couples, although the present Federal Government is only
prepared to legislate in respect of heterosexual couples.1 If, as is expected, non-married
couples are brought under the framework of Part VIII of the Family Law Act, then the
issue of quantifying the homemaker contribution will have an even greater reach.2
(a)The homemaker contribution and the patterns of differential investment
The homemaker contribution should not be understood only in terms of the pure role-
divided relationship so common in older generations. In pure role-divided
relationships, women devoted themselves to the care of the home and family, and also
frequently did a great variety of unpaid work outside the home, such as involvement
in schools, charitable organisations, and community groups. The withdrawal from
workforce participation occurred usually just prior to the birth of the first child but
sometimes well before then.
Pure role–divided marriages still exist, but the patterns of life for the great majority
of mothers now is one in which the care of home and children is combined with
workforce participation, with women moving in and out of part-time or full-time work
at different stages of their lives, and their children's lives.3 However, the homemaker
contribution is no less important and significant in terms of property alteration on
relationship breakdown, for the common pattern remains for women and men as
parents to make differential life-course investments, with fathers' primary investment
being in the market-place of career or self-employed business, while women's life
investments are more diversified, and include a major orientation towards the care of
children.4
Such specialisation may be an optimal arrangement if the marriage lasts, or even
lasts for a significant period. The mother's specialisation in caring for the daily needs of
the family represents an indirect investment in the earning capacity of the primary
wage-earner, and his success in the workplace is to some extent their success as a
partnership. Once the children reach an age at which they are more independent, the
mother can, and usually does, alter the pattern of her investments and takes a greater
role in paid work. But if the relationship breaks down, then both lose out on their
investments. For fathers, that loss is typically a loss of proximity to children,5 for
_____________________________________________________________________________________
*Professor of Law, University of Sydney. The author is most grateful for the comments of
Justice Richard Chisholm, Professor John Dewar, Miranda Kaye and the anonymous
reviewers on earlier versions of this article.
1Developments and Events, (2002) 16 Australian Journal of Family Law 169.
2Section 79 is contained within Part VIII of the Family Law Act.
3 Catherine Hakim, Work-lifestyle choices in the 21st Century: Preference Theory (2000).
4 Michael Bittman, Juggling Time: How Australian Families Use Their Time (1991); Australian
Bureau of Statistics, No 4150.0, Time Use Survey (1997).
5Patrick Parkinson and Bruce Smyth, 'When the difference is night & day: Parent–child
contact after separation'(Paper given at the 8th Australian Institute of Family Studies
Conference, Melbourne, 12–14 February 2003).
2003 Quantifying the Homemaker Contribution3
____________________________________________________________________________________
agreed child-rearing arrangements following separation still predominantly leave
mothers as the primary caretakers. For women, the lost investment is in her partner's
long-term earning capacity, since her specialisation in child-rearing has been an
investment in his career success or the development of his business, assuming that he
is in an occupation or business with a growth trajectory. None of this is intrinsically
gender-specific. The roles can be reversed, and occasionally they are.
Mary Ann Glendon has argued that mothers bear a 'triple burden'. There is not only
the double burden of combining workforce participation with carrying the major role
in domestic work, but also an additional burden associated with the economic risk if
the relationship breaks down.6 This triple burden provides the context in which we
need to consider what is commonly termed the 'homemaker contribution'.
(b)Confusion about the assessment of the homemaker contribution
It might be thought that after 25 years of decision-making on the Family Law Act, the
jurisprudence of how to evaluate homemaker contributions in comparison to other
kinds of contributions would be fairly well settled. In reality, the reverse is the case. As
this article will seek to demonstrate, the jurisprudence of family property law has
become more and more confused. The central problem is that the Full Court is now
assessing what it calls 'contributions' in a way which bears little relationship to the
original meaning when the Family Law Act was first enacted, and without any coherent
conceptual framework. The consequence is that property is being divided in some
cases in a manner that Parliament never i ntended and has not since authorised.
The confusion is not evident in most cases. Where the assets have been built up by
the efforts of the parties during the course of their relationship, courts readily reach a
conclusion that there has been equality of contribution,7 with the uncertainty resting in
the assessment of the s 75(2) factors. This aspect of the law is fairly well settled.8
However, where the Court has to decide how the homemaker contribution relates to
assets acquired before marriage,9 acquired in the course of the marriage by
inheritance,10 or acquired after separation,11 then, as Professor John Dewar has
observed,12 there are now two completely different approaches. The two bodies of case
law seem to exist side by side in the jurisprudence of the Family Court like estranged
spouses who will not talk to one another or acknowledge each other's presence. As a
_____________________________________________________________________________________
6Mary Ann Glendon, The New Family and the New Property (1981) 129.
7Waters and Jurek (1995) FLC ¶92–635.
8There remains debate about whether homemaker contributions should be equated with
earnings in cases where a great deal of wealth has accumulated. Yet despite the heat these
cases generate, these cases are rare and their precedential significance very limited. See
below Section 5.
9Shaw and Shaw (1989) FLC ¶92–010; Kennon and Kennon (1997) FLC ¶92–757. See Patrick
Parkinson, 'The Diminishing Significance of Initial Contributions to Property' (1999) 13
Australian Journal of Family Law 52.
10Figgins and Figgins [2002] FamCA 688.
11Farmer and Bramley (2000) FLC ¶93–060; For a critique see Patrick Parkinson, 'Judicial
Discretion, the Homemaker Contribution and Assets Acquired After Separation' (2001) 15
Australian Journal of Family Law 155.
12John Dewar, 'Contributions Outside Marriage' (Paper given at the 10th National Family
Law Conference, Melbourne, 16–20 March 2002). I am indebted to Professor Dewar for this
observation, although my ch aracterisation of the two approaches differs fro m his own.
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