【安和律师事务所】离婚、分居问题中的财产纠纷案件分析

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分居后但在财产分割前获得的财产

您与配偶或伴侣分开的那一刻，并不一定是您的财务不再纠缠在一起的时刻。分居后，经常会有一方获得财产或收入。很多时候，他们后来惊讶地发现这笔钱或财产被纳入在财产分割时考虑的资产池中。本文探讨了法院如何处理分居后但在财产分割前获得的财产。 一些最近的法院决定处理了分居后但在财产分割前获得的财产。这些案例为目前已分居但尚未与前伴侣最终确定财产分割的人们提供了警告。"

Calvin V McTier案中分居后获得的财产案件

2017年Calvin v McTier FacCAFC 125的判决是由家庭法院全院审理上诉决定的一案。丈夫通过继承在分居后获得了财产。这笔继承财产是在分居四年后获得的。他主张这不应当作为分配双方财产时考虑的财产池的一部分。这笔继承财产为430,686澳元，大约占总资产的32%，总资产约为130万澳元。 在审判中，对双方的贡献进行了评估。法官发现丈夫的贡献超过了妻子。丈夫较高的贡献是通过继承以及丈夫最初的580,000澳元的贡献。审判法官认为，应将财产贡献视为丈夫75%，妻子25%。然后，审判法官考虑应为妻子未来的需要进行调整，以致财产分配为丈夫65%，妻子35%。丈夫对此决定提出上诉。家庭法院全院审理了他的上诉。 全院发现，必须考虑听证时双方持有的所有财产，包括分居后获得的财产，并驳回了丈夫关于由于与关系无关而不应包括继承财产的论点。有趣的是，全院确实指出，它在处理分居后获得的财产时仍然保留自由裁量权。还应注意，丈夫没有主张包括继承财产在内导致的结果不公正和不合理。如果丈夫提出了这一论点，可能会达成不同的资产分配结果。 家庭法院全院的这一决定在后来的Holland & Holland [2017] FamCAFC 166和Widmann & Widmann [2017] FamCAFC 602的决定中得到了确认。

分居后收到的收入：Trask V Westlake案件

Trask v Westlake [2015] FamCASC160的决定涉及到前关系中丈夫在分居后所获得的收入。丈夫通过一项遣散费包裹，在分居日期与处理财产分割相关的审判日期之间，赚得了900万澳元的收入。这900万澳元超过了丈夫接受遣散费包裹前的全部财产池，即700万澳元。

夫妇的婚姻持续了十三年，他们共同育有四个孩子。在整个婚姻期间，丈夫是主要的收入来源。妻子在婚姻期间及分居后一直是夫妇孩子的主要照顾者和家庭主妇。

审判法官认为，双方对婚姻的贡献是平等的。由于丈夫的赚钱能力高于妻子，而妻子的财务需求又大于丈夫，法官确定妻子应该从资产池中额外获得10%的份额。

丈夫试图向澳大利亚家庭法院全院上诉此决定但未成功。该法院指出，他的收入能力不仅是通过他的勤奋工作以及技能和能力获得的，也是通过他的妻子在关系存在期间及分居后为他的孩子所提供的家务和照顾的帮助获得的。

时间限制

对于已分居或离婚的夫妇，确实存在适用的时间限制来终结他们之间的财务关系。对于离婚的夫妇，离婚满十二个月将终结财务关系。对于事实婚姻关系中分居的夫妇，分居满两年将终结他们之间的财务关系。

在这些时间框架内申请对前伴侣之间的财产调整是很重要的。虽然可以在这些时间框架之外申请，但需要获得法院的许可，而这并不总是被授予。

尽早确定财产分割以保护分居后获得的财产

在与您的前伴侣或配偶分开后，尽可能快地达成财产分割协议总是一个好主意。应当记住，您可以在分开后立即与前伴侣一起努力达成财产分割。即使在分居时仍然居住在同一住所时，您也可以确定您的财产分割。尽早完成财产分割将确保分居后获得的财产或收入不会与待分割的财产池混合

如果您对家庭法有任何疑问，请随时与我们联系。 您可以发送电子邮件至 [email protected] 或致电 (08) 8410 9069 安排预约/在线面试。请注意，本文不构成法律建议，

H & O Lawyers 不会对您根据本文采取的任何行动承担法律责任。

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PROPERTY ACQUIRED AFTER SEPARATION BUT BEFORE SETTLEMENT

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It is important to remember that the moment you separate from a partner or spouse is not necessarily the moment that your finances cease to be entangled.  Often one partner acquires property or receives income after separation, and they are later surprised to find that that money or property is included in the asset pool considered at the property settlement. This article examines how courts have dealt with property acquired after separation but before settlement.

Some recent court decisions have dealt with property acquired after separation but before settlement.  These cases serve as warnings to people currently separated who have not finalised property settlements with their former partners.

Property Acquired After Separation In Calvin V McTier

The 2017 decision of Calvin v McTier FacCAFC 125 was a case decided by the Full Court of the Family Court on appeal.  The husband acquired property after separation by way of an inheritance. The inheritance was acquired four years after separation.  He argued that this should not form part of the property pool considered for distribution between the parties.  The inheritance was for $430,686 and was about 32% of the total assets which were about $1.3 million in total.

At trial, the contributions of the parties were assessed. The Judge found the husband had contributed more than the wife.  The higher contributions of the husband were by way of the inheritance and initial contributions that the husband had made of $580,000. The trial judge found that the property contributions should be considered to be 75% from the husband and 25% from the wife.  The trial judge then considered that an adjustment should be made for the future needs of the wife so that the division of property would be 65% to the husband and 35% to the wife.  The husband appealed this decision.  The Full Court of the Family Court heard his appeal.

The Full Court found that it was required to consider all property that parties held at the time of the hearing, including property acquired after separation, and rejected the husband’s argument that the inheritance should not be included due to the lack of connection with the relationship. Interestingly, the Full Court did note that it does still hold discretion in how it chooses to deal with property acquired after separation.  It should also be noted that the husband did not assert the argument that including the inheritance in the property led to a result that was not just and equitable. It is possible that if this argument was led by the husband, a different result for the distribution of assets might have been achieved.

This decision of the Full Court of the Family Court has been approved in the later decisions of Holland & Holland [2017] FamCAFC 166 and Widmann & Widmann [2017] FamCAFC 602.

Income Received After Separation: Trask V Westlake

The decision of Trask v Westlake [2015] FamCASC160 concerned income received after separation by the husband in the former relationship.  The husband earned $9 million in income through a redundancy package between the date of separation and the date of the trial relating to the property settlement.  The $9 million was more than the total property pool prior to the husband receiving the redundancy package, which was $7 million.

The couple’s marriage lasted thirteen years, and they had four children together. Throughout the marriage, the husband was the primary income earner.  The wife throughout the marriage and after separation had been the primary carer for the couple’s children and homemaker.

The trial judge considered that the parties contributions to the marriage were equal.  As the husband had a higher earning capacity than the wife, and the wife had greater financial needs than the husband, the Judge determined that the wife should receive an additional 10% of the asset pool.

The husband was unsuccessful in appealing the decision to the Full Court of the Family Court of Australia.  This court noted that his income earning capacity was not only earned through his hard work and skills and abilities but also through the assistance of his wife through the homemaking and caring she provided for his children during the relationship and post-separation.

Time Limits

There are time limits that do apply to end the financial relationship between couples who have separated or divorced.  For a couple which divorces, being divorced for twelve months will end the financial relationship.  For a de facto couple that separates, being separated for two years will end the financial relationship between them.

It is important to apply for the property adjustment to be made between ex-partners within these timeframes.  It is possible to apply outside of these timeframes, but permission from the court needs to be obtained, and this is not always given.

Finalise Settlement Early To Protect Property Acquired After Separation

It is always a good idea to reach a property settlement as soon as possible with your ex-partner or spouse after separating.It should be remembered that you can work to achieve a property settlement with your ex-partner as soon as you separate.You could even be living in the same residence while separated when you finalise your property settlement.Finalising your property settlement early on will ensure that property acquired after separation or income received after separation will not be mixed up in the property pool under consideration for property settlement.