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It would be fair to say that most people would consider that property acquired after a<br>couple separate, from funds not accumulated during the relationship, should be<br>quarantined from any decision about distribution of property between them.<br>
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How does the court determine the distribution of property acquired after a couple separate? It would be fair to say that most people would consider that property acquired after a couple separate, from funds not accumulated during the relationship, should be quarantined from any decision about distribution of property between them. If this was ever in doubt, which to most of us practicing in Family Law it was not, it has been revisited in a recent decision by the Full Court called Calvin & McTier [2017] FMCAFC 125, delivered on 12 July 2017. It is a decision by the Chief Judge Bryant and Judges Ryan and Aldridge. In this case the husband had inherited from his family 4 years after the parties had separated but before their property case had been determined. The husband’s counsel argued that “where there is after-acquired property and the owner of the property objects to its inclusion….there must be a separate…. consideration as to whether there is a principled reason for its inclusion and division.”This argument was rejected by the Court as being “contrary to the extensive weight of authority.” The approach remains that in such a fact situation the discretion lies with the trial Judge as to how he will deal with the asset pool; either a combined pool of assets built up during the relationship and the inheritance or after acquired property or the inheritance or after acquired property in a separate pool. It is prudent to advise clients that all assets owned by them at the time of the trial will be included in the pool of assets for distribution between the parties. How the distribution is done is guided by an assessment of the contributions (financial and non-financial) that each party made to the pool of assets, what future considerations need to be taken into account and what ultimately is just and equitable in the particular circumstances of the case. Specialized divorce lawyers can suggest best way how to divide properties.
