In fam­i­ly law dis­putes it is a com­mon mis­con­cep­tion that an inher­i­tance or oth­er large sum received after sep­a­ra­tion will be exclud­ed from the prop­er­ty pool to be divid­ed between the par­ties. This issue was dealt with in the recent case of Calvin & McTi­er [2017] FAM­CAFC 125.

The Full Court of the Fam­i­ly Court in West­ern Aus­tralia heard an Appeal by a hus­band who argued that an inher­i­tance received 4 years after sep­a­ra­tion should not be includ­ed in the prop­er­ty to be divid­ed between him and his ex-wife. 

The par­ties were mar­ried for 8 years and were divorced in 2011.They had one child who was 5 years old at the time of separation.

In 2014 the hus­band received an inher­i­tance from his father’s estate.

The wife com­menced pro­ceed­ings more than 3 years after sep­a­ra­tion and was grant­ed the Court’s leave under Sec­tion 44 (3) of the Fam­i­ly Law Act to pur­sue a prop­er­ty set­tle­ment claim.

The tri­al Judge found that the net val­ue of the assets to be divid­ed between the par­ties was $1,340,319 of which, in per­cent­age terms, the remain­ing inher­i­tance of $430,686 account­ed for approx­i­mate­ly 32% of the asset pool. The hus­band tried unsuc­cess­ful­ly to exclude his inher­i­tance from the asset pool. The tri­al judge assessed con­tri­bu­tions as 75%/25% in the hus­band’s favour and, after mak­ing a 10% adjust­ment to the wife for future needs, divid­ed the prop­er­ty 65%/35% in favour of the husband

The hus­band appealed the decision.

The cen­tral issue on appeal was whether the tri­al Judge erred by includ­ing the hus­band’s post sep­a­ra­tion inher­i­tance with­in the par­ties’ prop­er­ty pool avail­able for divi­sion. The hus­band argued that his inher­i­tance should not be includ­ed in the pool because of the degree of con­nec­tion” or more to the point, the lack of con­nec­tion, between the inher­i­tance and the par­ties’ mat­ri­mo­ni­al rela­tion­ship. The hus­band was unsuc­cess­ful in tak­ing that posi­tion and his appeal was dismissed. 

The Full Court con­clud­ed that the Court retained a dis­cre­tion as to how to approach the treat­ment of prop­er­ty acquired after separation.

The Full Court have approved this deci­sion in two oth­er cas­es, Hol­land & Hol­land [2017] Fam­CAFC 166 and Wid­mann & Wid­mann [2017] Fam­CAFC 602.

Inter­est­ing­ly in the NSW case of Hol­land the inher­i­tance was not includ­ed in the asset pool.

It is impor­tant you obtain legal advice about your par­tic­u­lar cir­cum­stances before you make any deci­sions about divid­ing your prop­er­ty as a there is no one way the Court will deal with post sep­a­ra­tion assets.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

Using your con­struc­tion con­tract to man­age and mit­i­gate con­trac­tor insol­ven­cy risk

Intro­duc­tionThe risk of con­trac­tor insol­ven­cy mid way though a con­struc­tion project in the cur­rent mar­ket is real and real­ly expensive.This arti­cle pro­vides…

NSW Fair Trad­ing com­pli­ance | What to do if you receive a complaint

You receive a let­ter from NSW Fair Trad­ing (OFT) in your inbox refer­ring to a ​‘com­plaint’ being lodged against you/​your agency…

AS4000:2025 – What is all the fuss about?

With the recent release of the updat­ed AS4000:2025, for the first time in over 28 years, many stake­hold­ers in the con­struc­tion…

In the News

Michael Byrnes has pub­lished an arti­cle titled Use of AI Crit­i­cised by FWC” in HR Leader on 2 Sep­tem­ber 2025.

Michael Byrnes has pub­lished an arti­cle titled ​“Use of AI Crit­i­cised by FWC” in HR Leader on 2 Sep­tem­ber 2025.To read the…

Michael Byrnes is quot­ed in the arti­cle, Fair Work warns lit­i­gants against using Chat­G­PT”, pub­lished in The Aus­tralian on 28 August 2025:

Michael Byrnes is quot­ed in the arti­cle, ​“Fair Work warns lit­i­gants against using Chat­G­PT”, pub­lished in The Aus­tralian on 2…

Con­grat­u­la­tions | Angela Har­vey & John Trinh for being recog­nised in 2025 Doyles Guide Rankings

We’re proud to announce that Angela Har­vey has been recog­nised in the 2025 Doyles Guide as a:Rec­om­mend­ed Lead­ing Estates Lit­i­ga­tion Lawyer…

Sign up for our Newsletter

*Mandatory information