This article will discuss how a Court considers a party’s participation in IVF treatment in short to medium term relationships, particularly if the treatment was unsuccessful.
In determining how parties’ assets and liabilities are to be dealt with in property settlement proceedings, the Court is required to consider the contributions of each party to the relationship. The Court will consider, among other things, contributions to the welfare of the family constituted by the parties to the relationship and any children of the relationship, including any contribution made in the capacity of homemaker or parent.1
The decision to undergo In Vitro Fertilisation (IVF) is one that is made by both parties to a relationship as a part of their joint endeavour to have a child. While participating in IVF treatment is undoubtedly an emotionally stressful process for both parties, many women who undergo IVF also report that it is physically stressful on their body.
Nunn & Mayfield [2019] FCCA 542
In the case of Nunn & Mayfield [2019] FCCA 542 the Court considered the contribution of a party in undergoing IVF. In this case the parties were married for seven years and lived together for eight years. The wife underwent four cycles of IVF over the course of two years. She ceased her employment to undergo the treatment. The treatment was ultimately unsuccessful.
The wife said that she made an important contribution to the welfare of the family by undergoing the difficult IVF treatment. She provided evidence that the IVF treatment was undertaken as part of the life and relationship plans of the parties, that she found the treatment “incredibly tough” and that the emotional toll the treatment took on her was significant, particularly since she did not have family support around her. The Court accepted this evidence.2 The wife further submitted that the IVF treatment was a contribution to be weighed and not valued.3
The husband submitted that the emotional pain associated with participation in the failed IVF treatment and the inability to start a family was not appropriately assessed in the context of contributions. He said that the wife’s participation in IVF treatment was not a contribution to the welfare of the family as it did not free him to earn income. The husband also submitted that, in any event, the wife’s argument assumed her contribution was greater than the husband's in this regard because it was the wife who underwent the medical procedures, and the Court could not weigh the parties’ joint anguish and loss in relation to the unsuccessful IVF treatment. He argued that not all activities in a marriage can be considered ‘contributions’ in the legislated sense.4
The Court noted there was some force in the husband’s submissions but ultimately did not accept them. The Court held that the wife’s participation in IVF treatment is appropriately considered as a contribution to the welfare of the family when assessing contributions. It was held that the wife’s travail in undergoing IVF treatment was for the benefit of both parties and for the purposes of the family constituted by the parties to the marriage, and an attempt to enhance the joint enterprise of the parties’ marriage by the introduction of children. The Court noted that while the failure of the IVF treatment would have caused significant distress to both parties, the fact it was unsuccessful does not diminish the reality that it was the wife who subjected herself to the treatment, and that she did it for both parties. The Court also noted that the wife ceased her employment to undergo the IVF treatment.5
Lillis & Lillis [2019] FamCA 347
A wife’s participation in IVF treatment, while ultimately unsuccessful, was also considered a contribution to the welfare of the family in the case of Lillis & Lillis [2019] FamCA 347. In this case the parties cohabitated for approximately nine years. The wife underwent several cycles of IVF and experienced several miscarriages. The parties also attempted to have a child through surrogacy arrangements. The wife described the IVF procedures as “exhausting emotionally traumatic and physically taxing”.
The husband argued that there ought to be no alteration of property interest in the matter on the basis that their nine years of cohabitation was a short marriage. The Court, in refusing to accept this, referred to the length of the relationship and the significance of each of the parties’ contributions over the period. The Court recognised that “one of those contributions was the joint endeavour of the parties to become parents.”6
The Court held the wife’s contribution to the parties’ infertility issues was considerable. In referring to the parties’ joint endeavour to have children, her Honour commented “That chapter in their lives lasted nearly five years and took an enormous toll upon the parties, particularly the wife.”7
The cases demonstrate the importance of considering a party’s participation in IVF treatment in short to medium-term relationships when assessing contributions in a property settlement, regardless of whether or not the ultimate result of the treatment was to produce a child.
For more information or to discuss your personal circumstances, please contact our Family and Relationship Law team at HopgoodGanim Lawyers.
1 Family Law Act 1975 (Cth) ss 79(4)(c), 90SM(4)(c)
2 Nunn & Mayfield [2019] FCCA 542, paragraph 127
3 Ibid, paragraph 136
4 Ibid, paragraphs 137 and 138
5 Ibid, paragraph 139
6 Lillis & Lillis [2019] FamCA 347, paragraph [18]
7 Ibid, paragraph [19]