When her prior marriage ended, Denise Hart put assets from her relationship property settlement into a family trust. These assets remained protected when her subsequent eighteen year relationship with Gavin Elbers came to an end.
The High Court was told the two began a de facto relationship in 2004, marrying in 2006.
From the beginning of their relationship, Denise set up several family trusts. She is a discretionary beneficiary; her children final beneficiaries. Husband Gavin is not named as a beneficiary.
Evidence was given that subsequently he did benefit indirectly. Joint living expenses were paid out of trust funds.
Over the near two decades of their relationship, trusts established by Denise purchased three properties. Funding came from trust resources plus bank loans. No funding came from Denise personally.
She challenged caveats registered against title to these three properties by her estranged spouse when their relationship ended. He claimed relationship property rights in the properties.
There was no evidence, nor even a suggestion, that any part of the purchase prices was sourced from funds or property that would otherwise form part of relationship property, Associate judge Brittain said.
The caveats lapsed. Mr Elbers had no relationship property claim over assets owned and paid for by third parties, being Denise’s various family trusts.
Mr Elbers also claimed he was entitled to share in the properties’ increased value in return for work he had done. He is a painter and decorator.
Judge Brittain said a ‘contracting out’ agreement he signed with Denise in 2005 provided that any contributions by Mr Elbers improving the value of her separate property would be compensated. This agreement did not create a claim against the trust properties themselves; it merely gave the right to recover compensation from Denise personally.
The court was told their ‘contracting out’ agreement includes a mechanism for calculating any compensation, and a dispute resolution process if they cannot agree.
Elbers v. Hart – High Court (17.06.24)
24.151