Are assets received post family law separation included in the property settlement?

A review of Farmer and Bramley (2000) FLC 93-060

Facts of the Case

The essential facts of this case are as follows:

  • The parties commenced a de facto relationship in January 1983, married in April 1984 and separated in January 1995.  The relationship was the second for both and spanned (10) years duration.
  • The parties each had children to previous partners and had one child together (S), born in March 1985.
  • At the time of separation, the parties had no property of any value.
  • When the parties separated in January 1995, their child S had remained living with the wife until December of 1995, when she went to live with the husband. S remained with the husband through 1996 and 1997, but she returned to live with the wife in December 1997.
  • On 3 September 1996, the husband won five million dollars in a lottery.  The wife became aware of this shortly thereafter.
  • On 28 September 1997, the wife re-married.
  • On 15 January 1998, the husband filed an application regarding residence of the couple’s child (S).  The wife filed a response to the application seeking orders for the child and additionally, seeking an order that the husband pay her the sum of $1,000,000 by way of a property settlement from the post-separation lottery winnings.
  • The husband resisted the wife’s claim on the property including the lottery win and the matter ran to a trial on that issue.  

Issues

The issue for the Court was to determine whether the former husband was responsible to provide the former wife a property settlement from funds received post-separation via a lottery win.  

The Court decided

In the first trial, the Court decided that the wife should receive a property settlement in the amount of $750,000, which represented 15% of the overall net property pool of the parties.

The Husband appealed to the Full Court of the Family Court, which ultimately decided in favour of the wife and the decision at original trial was not disturbed.

The Court reasoned that the wife had made a contribution to the property pool and assessed the contribution as being valued at 12.5% of the net property pool because of her contributions to the welfare of the family during the marriage.  Additionally, the Court assessed her future needs factors as being valued at 2.5% of the net property pool the result of her higher ongoing caring for the couple’s child.

Rationale

The adjustment of the husband’s property in the wife’s favour was because of her having made higher contributions throughout the marriage to the welfare of the family, including caring for the child and at the same time:-

  • supporting the husband whilst he was unemployed;
  • supporting the husband while he studied;  and
  • supporting the husband while he battled a heroine addiction.

But for the lottery win, the property pool of the parties was nominal at the end of the relationship, largely the result of the above factors including lesser contributions of the husband.

The case highlights that direct financial contribution to an asset (the lottery win) is not required for an adjustment of overall property interests in circumstances where other contributions have been made, such as contributions to the welfare of the family.  The future needs including ongoing care of the child was also given weight when determining that an adjustment of the parties’ assets was just and equitable.

Luke Cudmore

Principal Family Lawyer at Cudmore Legal Family Lawyers Brisbane Co. Luke is experienced in family law matters ranging from divorce to child custody. He is a skilled negotiator and strategist and fights zealously for his clients family law rights.