When a relationship breaks down, even in circumstances where
parties are amicable and able to agree on a division of their asset
pool, negotiation and discussions can often take many months to
result in a final settlement.
Should a matter require the intervention of the Family Court it
is not unusual for litigation to continue for some time, perhaps
years. As a result, parties' financial circumstances may be
significantly different at the end of negotiations or litigation
than they were at the date of their separation.
Wealth gained after separation
What happens when one party substantially improves their asset
position after separation but before the conclusion of their
property settlement? They may well feel unhappy at the prospect of
having to share their post separation "new wealth" with
their former partner – but it is very likely that will be the
The issue of parties' "post separation
contributions" and how the Court will treat assets accumulated
after separation was dealt with in the recent appeal case of
Trask & Westlake  FamCAFC 160.
In this case a period of approximately 4 years passed between
the parties' separation and the conclusion of their trial in
the Family Court. Over that time the husband submitted that he had
made very significant post separation contributions. At trial the
Court found the parties' had net assets of about $7 million.
However approximately a year following the parties' separation
the Husband had obtained a new role with a much higher salary. The
Husband's taxable income for the three years immediately before
trial was $2 million, $3.5 million and $1 million, plus incentive
payments and sign on fees totalling $2.6 million over that
Despite a large portion of the parties' asset pool being
comprised of financial contributions by the Husband after
separation, the Court found that the parties had made equal post
separation contributions. Why? The Court held that the Husband was
only able to obtain his new, highly paid position because of the
experience and opportunities he had been able to pursue while
supported by the Wife in her role as primary carer to the
parties' four children throughout their relationship and
following their separation.
The Husband was unsuccessful in an attempt to appeal the
decision of the Trial Judge to the Full Court of the Family
Implications for property settlements
The case outlined above demonstrates one of the perils of
failing to quickly resolve financial matters following the
breakdown of a relationship. 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
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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The person named as an executor in the deceased's will has the right to arrange for the burial of the deceased's body.
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