Property Acquired After Separation But Before Settlement

It is important to remember that the moment you separate from a partner or spouse is not necessarily the moment that your finances cease to be entangled.  Often one partner acquires property or receives income after separation, and they are later surprised to find that it is included in the asset pool and considered as part of property settlement. This article examines how courts have dealt with property acquired after separation but before settlement.

Some recent court decisions have dealt with property acquired after separation but before settlement.  These cases serve as warnings to people currently separated who have not finalised property settlements with their former partners.

Property acquired after separation in Calvin v McTier

The 2017 decision of Calvin v McTier FacCAFC 125 was a case decided by the Full Court of the Family Court on appeal.  The husband acquired property after separation by way of an inheritance.  The inheritance was acquired four years after separation.  He argued that this should not form part of the property pool considered for distribution between the parties.  The inheritance was for $430,686 and was about 32% of the total assets which were about $1.3 million in total.

At trial, the contributions of the parties were assessed. The Judge found the husband had contributed more than the wife.  The higher contributions of the husband were by way of the inheritance and initial contributions that the husband had made of $580,000. The trial judge found that the property contributions should be considered to be 75% from the husband and 25% from the wife.  The trial judge then considered that an adjustment should be made for the future needs of the wife so that the division of property would be 65% to the husband and 35% to the wife.  The husband appealed this decision.  The Full Court of the Family Court heard his appeal.

The Full Court found that it was required to consider all property that parties held at the time of the hearing, including property acquired after separation, and rejected the husband’s argument that the inheritance should not be included due to the lack of connection with the relationship. Interestingly, the Full Court did note that it does still hold discretion in how it chooses to deal with property acquired after separation.  

This decision of the Full Court of the Family Court has been approved in the later decisions of Holland & Holland [2017] FamCAFC 166 and Widmann & Widmann [2017] FamCAFC 602.

Income received after separation: Trask v Westlake

The 2015 decision of Trask v Westlake [2015] FamCASC160 was a case decided by the Full Court of the Family Court on appeal.  This case concerned income received after separation by the husband in the former relationship.  The husband received $9 million through a redundancy package after separation. These monies totaled more than property pool which was $7 million and the husband argued that redundancy package should not form part of the property pool considered for distribution between the parties.    

At trial, the contributions of the parties were assessed. This was a long marriage of 13 years, and the parties had four children together. The husband was the primary income earner while the wife was the primary carer of the children and primary homemaker.  The trial judge considered that the parties’ contributions to the marriage were equal but that the wife had greater future needs where the husband had a higher earning capacity than her and therefore the Judge determined that the wife should receive an additional 10% of the asset pool.   The husband appealed this decision and argued that the Trial Judge attributed excess weight to the wife’s non-financial post-separation contributions.  The Full Court of the Family Court heard his appeal.

The Full Court found that the husband’s income earning capacity did not increase post-separation only through his hard work and skills and abilities but also through the assistance of his wife continuing her role as primary homemaker and carer of the children post-separation.  Although the appeal was upheld as the Orders for other reasons, the Full Court did not disturb the Trial Judge’s finding that the post-separation contributions of the wife, whilst not financial, should still be given equal weight to those of the husband.

Finalise settlement early to protect property acquired after separation

It is always a good idea to reach a property settlement as soon as possible with your ex-partner or spouse after separating.  It should be remembered that you can work to achieve a property settlement with your ex-partner as soon as you separate.  You could even be living in the same residence while separated when you finalise your property settlement.  Finalising your property settlement early on will ensure that property acquired after separation or income received after separation will not be mixed up in the property pool under consideration for property settlement.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.