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  • Sami Abbas

Loan or Gift? Family Contributions in Divorce Proceedings

Family loan agreements serve as a common means for transferring money between relatives, often driven by a desire to assist loved ones in times of need or important life events like purchasing a home, or just to give a helping hand.

A quote that illustrates the need for family loan agreements especially considering the current housing market, can be found in the case of Chaudhary v Chaudhary [2017] NSWCA 222, where it is stated: There has been much discussion in recent times about the unaffordability of housing, particularly for young people, in many parts of Australia. One consequence of declining housing affordability is that young adults very often need and sometimes receive assistance from parents (or other benefactors) to enter the housing market. The occasion for providing that assistance may be that a young couple is in or about to start a relationship.


Amidst the complexities of family law, it's crucial to ensure that these agreements are clearly distinguished from gifts. When facing division due to separation or divorce, it's essential to prevent funds lent to family members from being included in the asset pool subject to division between the parties. Disputes often arise when there's an informal or verbal agreement between one party and their parents regarding the provision of funds. In many cases, formal documentation is lacking due to an understanding or expectation that the money will be repaid, coupled with a belief that the marriage or relationship will not end. This necessitates establishing key components within the loan agreement, including a detailed repayment schedule, specifying the loan amount and its purpose, and outlining consequences for non-payment. The presence of a well-documented and duly executed loan agreement can significantly mitigate potential disputes in the future.

In this article we will explore how the court determines the composition of the asset pool, addressing the fundamental question: Is the asset under consideration a gift to one or both parties, thereby included in the pool, or is it a loan, constituting a liability? Understanding this distinction is paramount in navigating the legal complexities surrounding family loans within the context of separation or divorce proceedings.


The Asset Pool

In family law proceedings, the initial step is to determine the legal and equitable interests of each of the parties in assets and liabilities, in order for there to be an establishment of the asset pool as outlined in cases such as Stanford v Stanford and Hickey v Hickey.[1] This must occur before determining what orders are made.

In scenarios where one spouse has received a substantial sum of money or property as a loan, the available property for division in the settlement is likely to decrease. This owes to the inherent nature of loans requiring repayment, with any outstanding amounts forming part of the couple's joint liabilities to be reimbursed to the lender.

Section 79(4)(a) of the Family Law Act 1975 provides guidance on altering property interests in property settlement proceedings. This section empowers the court to make orders adjusting the parties' interests in the property, settling property in lieu of any interest, or requiring settlements or transfers for the benefit of either party or a child of the marriage. Furthermore, Section 79A addresses the setting aside of orders altering property interests, taking into account the interests of creditors whose claims may be affected by the order. This provision safeguards against situations where creditors may struggle to recover debts due to the order's implications. In essence, these provisions are designed to ensure the equitable and just distribution of property throughout divorce or separation proceedings, upholding the principles of fairness and balance and are relevant considerations for determining the asset pool and determining what falls within it.


Family Loan Agreements

When providing financial assistance to family members, clarity is paramount in distinguishing between a loan, which entails repayment, and a gift, which does not. Judge Edmonds' definition of a loan agreement in FCT v Rawson Finances [2012] FCA 182 succinctly captures the essence of a loan transaction:

The essence of a loan of money from A to B is a corresponding contemporaneous obligation on the part of B to repay the money transferred from A to B. Absent that obligation, the transfer of the money from A to B is something else – a gift – but it is not a loan.

Failure to clearly delineate the nature of the transaction can lead to it being perceived as a gift, both legally and by the recipient. This distinction becomes crucial in divorce or separation scenarios, where the classification of the money as a loan could potentially reduce the asset pool available for division.

When determining whether an asset is classified as a gift or a loan in family law cases, the particular circumstances play a pivotal role. Various factors are considered in this assessment, as evidenced by legal precedents:

  1. Existence of a Loan Agreement: In the case of Maddock & Anor (No 2) [2011] FMCAfam 1340, the court deliberated on a scenario where the husband's father provided $240,000 towards purchasing land and building a house. Despite the father seeking repayment, the absence of a clear repayment mechanism led the court to conclude that the advances were not repayable, but rather a contribution on the husband's behalf.

  2. Timing of the Agreement and Communication Between Parties: In Liakos v Zervos & Anor [2011] FamCA 547, a father loaned his son $587,000 over time. Although a formal agreement was later executed, the court found it unenforceable due to the lack of repayments or enforcement of terms, indicating it was pressed against the wife's interest.

  3. Repayments or Demands for Payments: Pelly & Nolan [2011] FMCAfam 530 illustrates a case where a father loaned his son $320,000 for property purchases. The court deducted this sum from the asset pool as the likelihood of repayment was established through documented loans.

  4. Interest and Intention for Repayment: Pelly & Nolan, Ibid, highlights the significance of charging interest and demonstrating an intention for repayment to establish the nature of the transaction.

  5. Likelihood of Repayment Being Required: In Damiani & Damiani [2012] FamCA 535, the court considered the unlikelihood of the wife's parents calling upon a debt, thus excluding the engagement ring from the asset pool.

  6. Intent of the Lending Parent: Cases such as Kessey and Kessey (1994) FLC 92-495 and Pellegrino & Pellegrino (1997) FLC 92-789 emphasise the importance of determining whether the lending parent intended to benefit solely their child or both parties in the context of property division.


Once the existence of a loan is established, its impact on property division depends on the principles set out in relevant case law, such as Biltoft v Biltoft.[2] This case underscores the court's discretion in determining whether to consider an alleged liability, particularly where it may be vague, uncertain, unlikely to be enforced, or unreasonably incurred. The Biltoft decision serves as a pivotal precedent for the court's authority to exclude unsecured liabilities from property settlements. Justice O'Brien summarises the principles in Biltoft in the case of Rodgers and Rodgers by stating:


... the manner in which a particular liability should be treated is, ultimately, dependent upon the nature of the liability, the circumstances surrounding the liability and the dictates of justice and equity shaped by each. The usual practice or 'rule' sits comfortably and conformably within that rubric - in many cases, perhaps, almost all, liabilities will be deducted from the 'gross' value of the property because it will be clear (and even if not expressly stated, determined) that the justice and equity of the case demands that the liability should be met by the parties in the proportions in which the Court determines the property is to be divided. Liabilities that are vague, uncertain. unlikely to be enforced and the like might be treated differently because those circumstances might. in the circumstances of a particular case. render it unjust and inequitable for liabilities to be deducted in that manner. Those so-called `exceptional cases' are but instances of the broader consideration of the justice and equity of the particular case.[3]


In summary, navigating family loan agreements within the context of family law requires a comprehensive consideration of legal principles, case law precedents, and the specific circumstances of each case to ensure a fair outcome. Key factors influencing the court's determination include:

  • The presence of a written loan agreement.

  • Terms of repayment stipulated in the agreement.

  • Evidence of actual loan repayments by the parties.

  • Discussions between the parties regarding the loan's existence and terms.

  • Expectations of repayment from both parties.

  • Any security provided, such as a registered mortgage, related to the loan.


At Carter Dickens Lawyers, we specialise in family law and are dedicated to guiding you through the complexities of legal proceedings. Whether you require assistance with a family loan agreement or any other family law matter, we are here to help. Our experienced team is committed to providing you with expert advice and support tailored to your specific needs.


Disclaimer: The information provided here is for educational purposes only and should not be considered legal advice. If you need legal assistance, we recommend contacting Carter Dickens Lawyers or consulting a qualified attorney. Legal matters can vary based on laws and regulations, and it is important to seek professional advice for your specific situation.


[1] Stanford v Stanford [2012] HCA 52; Hickey v Hickey [2003] FamCA 395.

[2] Biltoft v Biltoft [1995] FLC 92-614.

[3] Rodgers and Rodgers [No 2] [2016] FLC 93-712 (at paragraphs [41] - [42]).

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