In weighing up their decision in any given case, the Courts have long adopted a four-step process:
- What are the net assets of the parties?
- What are the parties’ contributions to those assets?
- What if any adjustment should be made for future needs of the parties?
- Having considered all of the above, what outcome is just and equitable (fair and reasonable)?
Date of separation is not the critical date
It sometimes surprises our family law clients to find out from us that the critical point at which the Courts make their determination in financial matters is the date of trial (in other words, the current date) and not the date of separation.
Therefore, when we sit down to advise clients about their rights and entitlements in property settlement, we take care to ask them not only about their assets, liabilities and financial resources at the date of separation but at the date of the appointment, the current date, because that is the clearly the relevant date in the eyes of the Courts and clients have a duty to make disclosure of all their financial circumstances at any given time.
Delay between separation and settlement/trial
Unless a client is lucky enough to have reached a quick and early settlement with their spouse, it is frequently the case for clients to have to wait a year or two or more after they separate before they can achieve a negotiated settlement with their spouse, or have their dispute determined by the Courts.
What this means is that any assets acquired by a party after separation will usually be taken into account by the Courts when they make their final decision about who gets what even if the other party has made no contribution to an asset after separation.
There have been a number cases in the Courts where one party receives:
· a windfall such as a big lottery win;
· an inheritance;
· a wise investment that pays off;
· a redundancy payment;
· a large compensation pay out
all of which have been included in the asset pool to be divided between the parties even though that party acquired or received the asset after separation and the other party may have seemingly had nothing to do with it.
Remember, the Family Courts have wide discretionary powers when making decisions about how assets are to be divided and can make critical adjustments at each of the four (4) steps referred to above based on, for example, contributions as home-maker and parent and future needs. These factors are considered by the Courts to be just as important as financial contribution.
The case of Trask v Westlake
This was a very illustrative Family Court case from less than two years ago and should ring alarm bells for a lot of people.
In that case, the parties were married for 13 years. The husband was a corporate high-flier, the wife was a stay at home mum, and together they had four kids. They separated in 2009, when the total asset pool between them was about $7 million, but neither party took the other to Court until 2013. By this time the husband had amassed a further $9 million in income from his employment including a massive redundancy package.
Have a guess what happened?
The husband argued unsuccessfully that the $9 million should be excluded from the asset pool. The Court said that the parties had contributed equally to the assets of the marriage, including the assets received by the husband post-separation, the husband as income earner and the wife as homemaker and parent, in awarding a 50-50 split of the assets.
Further, the Court ordered that wife be awarded an additional 10% of the assets (including the post-separation assets) on account of her future needs. As a result, the wife was entitled to 60% of the approximately $16 million asset pool.
Yes, the husband was a hard-working and talented executive such as to be able amass a sizeable fortune for the family pre-separation, but Court said that the wife contributed to this by being a great wife and mum to their four children throughout the marriage.
But what about the $9 million post-separation, you say? The Court said that after the parties separated, the wife continued to be an equal contributor as far as her being a home-maker and parent which freed up and enabled the husband to obtain a higher paying executive job in the corporate world, thus entitling her to an equal share of the $9 million.
The moral of the Trask v Westlake story
The case of “poor” Mr Trask highlights a few very important points for you if you find yourself in the same position (or even if you’re in shoes similar to Mrs Westlake’s):
· Do not delay settlement of your matter if you can possibly avoid it. Anything can happen post-separation and sometimes it may be better to settle on favourable terms with your spouse rather than fight tooth nail for every perceived hard-earned dollar.
· If there is a delay between separation and settling your matter, understand that your post-separation assets and earnings will invariably be taken into account in the final wash-up, especially if those assets and earnings post-separation are significant.
· If it is inevitable that there is going to be a delay in settling your matter, try to suspend your commercial life as much as possible without being seen to be wasting assets: don’t go out and buy blue chip shares, or get into get rich quick schemes otherwise they may pay off and cost you big time!
· Your duty to make full and frank disclosure is ongoing and you must candidly and fulsomely disclose all of your assets and earnings whether prior to, during or after separation.
· It is an absolute myth that sheer financial contributions should be given greater weight than the so-called mere contributions of a homemaker and parent. Time and again, the Courts have said that dividing the assets of a marriage or relationship is not a mathematical exercise of dollar for dollar contributions. The family is always paramount in the eyes of the Family Courts.
· As soon as possible after separation, if not before, please make sure you get good advice from experienced family lawyers such as ourselves to assess what your potential exposure is, especially post-separation, until settlement of your matter.
· Remember that settlement means a formal resolution of all financial matters between you and your spouse either by agreement as Consent Orders filed in the Family Court or as determined by the Family Courts after a trial. Only then can you ensure what’s yours is really yours and what’s theirs is really theirs.
This blog is published by Di Rosa Lawyers for informational purposes only and is not considered legal advice on any subject matter. By reading and re-publishing the blog, you acknowledge that there is no solicitor-client relationship between you and Di Rosa Lawyers. This blog should not be used as a substitute for legal advice from a legal practitioner who specialises in the area and you are urged to consult us or seek your own independent legal advice on any specific issue or matter.