Post Separation Financials


The roles that parties adopt during their relationship will inevitably have an impact on their future earning capacity and possibility for career advancement. Where one parent remains in the workforce and the other supports that position by taking on the role of primary carer of the children this often leads to a significant advantage for the working parent who is able to gain the benefit of experience and opportunities that otherwise would not have been afforded to them.

The recent case of Trask & Westlake [2015] FamCAFC 160 looked at this exact issue and in particular the significant increase in the father’s earning capacity by virtue of the wife’s supporting role as primary carer to the couple’ four children.

By the time this matter had reached trial it had been four years since the date of separation. During the four years post separation the husband had obtained a much more lucrative job and was receiving an income significantly higher than that he had been paid during the course of the relationship. Taking into consideration the husband’s post separation earnings the asset pool at the time of trial was valued at $7 million dollars. The question was whether these post separation contributions could be considered. The Trial Judge assessed the parties’ contributions both during the relationship and post separation and found them to be equal. The Judge then made a 10% adjustment in favour of the wife noting the husband’s significant increase in future earning capacity.

At trial the judge found that the only reason the husband was able to obtain his new position was because of the experience and opportunities he had been afforded by virtue of the wife’s support as the primary carer of their four children both during the relationship and post separation.

The husband appealed the Trial Judge’s decision to the Full Court of the Family Court but was inevitably unsuccessful.

What does this mean for property settlement matters moving forward?

Following the decision in Trask & Westlake it is more important than ever to commence negotiations as early as possible. It is also important to note that whilst the Family Law Act 1975 stipulates that couples must be separated for 12 months before they can apply for a divorce, there is no such requirement for property settlement.