The Family Court of Australia recently looked at whether an inheritance received by one party three  years after separation should be included as property to be divided between the a Husband and Wife.

The Case

The case involved a Husband and Wife who, at the time of trial, had been married 17 years and separated 8.5 years.

Under his brother’s Will the Husband received a property worth $715,000 three years after the parties’ separation. The property was unencumbered at the time of trial.

The trial judge excluded the property from the parties’ asset pool. Instead the trial judge treated the property as a ‘financial resource’ of the Husband. The Wife appealed the decision of the trial judge.

The Full Court of the Family Court were required to consider whether the property acquired after separation should be included in the parties asset pool.

The Law

The Full Court held that the trial judge was mistaken in excluding the property from the parties’ asset pool and considering it as a financial resource of the Husband. The Full Court stated,

“It was, with respect, not a financial resource; it was property of the husband. It is property to which the parties are, or a party is, presently entitled.”

The Full Court further stated the trial judge should have considered the contributions made by the Wife and the Husband to the property during the marriage and following separation and made an appropriate adjustment if fair, just and equitable to do so.

The decision of the Full Court highlights the importance of resolving your property settlement as soon as possible after separation. Separated parties may apply for a property settlement any time after separation has taken place.

If you need advice on a property settlement, make an appointment with our family lawyer.

Photo by Julián Gentilezza on Unsplash