Bride and groom figurines standing on two separated slices of wedding cake
Bride and groom figurines standing on two separated slices of wedding cake Jeffrey Hamilton

Post-split assets fair game under family law

FAMILY LAW with Paula Phelan

WHEN a relationship breaks down and the parties are looking at sorting out a property settlement, what date should the court look at when determining the "matrimonial pool" of assets?

Is it only those assets that exist at the date of separation that should be included, leaving the parties free to build up personal wealth? Or, does the "matrimonial pool" continue to grow after separation right up until the property settlement is finalised? This date may be some years in the future and the parties may have substantially increased their individual wealth.

Generally speaking, separation does not "freeze" the matrimonial pool and assets acquired by either party after separation may be included, even though considerable time has passed.

In a recent topical case of the Full Court of the Family Court, the husband earned more in the four-year period after separation than the value of the entire property pool at the date of separation.

The parties had been together for 13 years and had four children. During the marriage the parties had "embraced roles" agreed between them - the husband worked as a professional, the wife as homemaker and parent.

Although the pool at the time of separation was substantial, the husband earned income and redundancy packages during the four years that exceeded this amount. At the initial hearing the judge found that the party's contributions to the assets as at the date of separation were equal.

The husband argued that it was not fair for the wife to claim that her post-separation contribution as a parent was equal to his for the following reasons:

The growing independence of the children;

The husband's absence from the home;

The substantial period since the parties separated.

The Full Court disagreed stating that during the course of the marriage the wife in her role as homemaker and parent contributed to the husband's ability to earn significant post-separation income.

The court added that the fact that the wife's contributions were not susceptible to a dollar calculation did not render them less important.

Each family situation is unique and seeking expert family law advice about where you stand may help to ease some of the stress and uncertainty associated with separation.

Paula Phelan is an accredited specialist in Family Law and partner at local firm Rees R & Sydney Jones