When parties separate, it is not unusual for settlement
discussions to take months and years to resolve. When a matter goes
through the Court system and requires a decision by a judicial
officer because the parties are not able to settle the matter
themselves, the parties' financial circumstance at the time of
Trial may be very different from their financial circumstance at
the time of their separation. As lawyers, we are often asked to
provide advice to our clients as to the effect such changes have on
the parties' property division. It is not unusual in such cases
for a party who has made significant contributions post separation
to feel aggrieved that their financial good fortune is to be shared
with the party from whom they have now separated. One such case is
the recently decided appeal case of Trask & Westlake
 FamCAFC 160.
In this case, the parties were married for about 11 years and
had lived together for about 13 years. They had four children who
were aged 15, 13, 11 and 9 at the time of their separation. They
were not able to agree on their property settlement and litigated
the matter to a Trial. By the time Orders were made by the Court,
some four years had passed since the parties' separation. A
significant issue at Trial was the post separation financial
contributions made by the husband.
At Trial, the Court found that the parties had net assets of
about $7million. The husband submitted that he made a substantially
higher financial contribution, post separation, because of his very
high income post separation. Specifically, about a year post
separation, the husband obtained a new position that paid a
markedly higher salary, and included significant sign-on fees and
incentive payments. The husband's taxable income for the 3
years after he had obtained the new position was approximately
$2million, $3.5million, and $1million respectively. The sign-on
fees and incentive payments totalled approximately $2.6million.
Notwithstanding these significant financial post separation
contributions the Trial Judge found that the husband and the
wife's post separation contributions were equal.
In arriving at this conclusion, the Court noted that throughout
their marriage, the parties conducted their relationship on the
basis that the husband would pursue his career, and that the wife
would be the homemaker and primary carer to the children. The Court
found that the husband's new position was gained because of the
experience, knowledge and opportunities he had obtained in his
earlier employment, where he was entirely supported by the wife.
The Trial Judge found that the wife's non-financial
contribution and contribution to the welfare of the children
permitted the husband his promotions, which in turn led to the
position he obtained post separation.
The husband attempted to challenge the Trial Judge's
assessment of his post separation contributions. On appeal, the
Full Court of the Family Court found that the assessment of
contributions remains "a matter of judgment and not of
computation", and that the Trial Judge correctly recognised
that the wife's contributions did not cease upon separation.
While any one of the Judges of the Full Court had they been acting
as the Trial Judge may have come to a different conclusion, that is
not enough for an Appeal Court to overturn a Trial Judge's
decision. The Appeal was dimissed.
The above case is but one example of a case where had the
husband and the wife settled their financial issues shortly after
separation, even if the husband had provided the wife with the
majority of their assets at the time of separation, the husband
would likely have done better overall.
While there is a requirement in Australia that married parties
are required to have separated from each other for a period of 12
months before they apply for divorce, there is no such requirement
before they apply for a property settlement. The case outlined
above provides an example of a situation where a quick post
separation financial settlement would have been financially
advantageous for the husband.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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