Separating couples often want to know whether a particular asset, such as an inheritance, forms part of the pool of assets that gets divided between them. This can require complex analysis as each case is different and decided on its own facts. This means you will require and should obtain specialist legal advice about whether an asset is “in” or “out” of the pool. For example, some clients might have inherited an asset and then kept it quite separate from the rest of the assets of the couple. That asset may be taken into account in other ways in the division of the pool of assets particularly if it generates income ie interest on a bank account.
At Counsel Family Lawyers we can advise you on these issues taking into account the particular circumstances of your case. This advice will go a long way to assisting you when you are negotiating or mediating an appropriate settlement between you and your former partner.
In the case of Elford & Elford (2016) the husband and wife lived together for 10 years and in the second year of their cohabitation the husband won $622,842 on a Tattslotto ticket. The husband put those funds in a separate bank account still held when the parties separated. Before the win, the wife brought in $130,000 and the husband $535,000, and the total assets at the end of the marriage including the husband’s lottery win were about $1.4 million.
The Full Court of the Family Court of Australia heard an appeal by the wife against the trial judge’s decision to give her 10% of the net assets of $1.4 million.
The Full Court dismissed the wife’s appeal, upholding the trial judge’s approach. Because the lottery winnings had been kept separate, had not been intended as a joint purpose, and the parties kept their other finances separate, it was appropriate to treat the lottery winnings as a contribution by the husband alone. There were other factors in play as well which the courts considered relevant. The husband was ill and required on going medical treatment and would do for the rest of his life.
Senior Associate James Moore
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