The processes of formal divorce and property separation are separate and independent, and are usually completed at different times.

A common concern among separated couples is that the actual division of the common “property pool” takes place some time after the separation, and the financial circumstances of one or both parties’ has likely changed by the time it occurs, resulting in property acquired since separation being shared, or a loss by one party being shared by the other. Litigants always find this unfair, but the truth of it is that the current pool has to be shared in the proportions decided upon, and if one party has purposely impoverished themselves, this can be rectified in the distribution. But what of the situation where one party has made substantial gains since separation – why should the other share in those gains?

Generally normal gains will be shared, but what of a windfall gain, such as a lottery win, or an inheritance? Generally these gains will be excluded, especially if they occurred a good deal after separation. But in Farmer and Bramley, a 2000 decision, the husband won $5,000,000 in a lottery, about 18 months after separation. The wife claimed half. The husband argued that the wife had nothing to do with the gain, why should she benefit?

The Family Court is a court of equity, meaning “fairness”. Immediately this introduces a subjective element – what’s fair for one person may not be so for another. In the actual case, the Judge awarded the wife $750,000 of the lottery win, besides what the wife received from the rest of the pool. The Judge thought it was fair, in all the circumstances of that case, to award the wife something. The case highlights the fact that every matter is different and the court has to consider many competing interests in reaching a final conclusion, which the parties will often think is unfair, because each sees the matter only from their own perspective. It also highlights the importance of finalising property settlements as soon as possible – you do not need to wait a year to commence, like you do for the divorce proceedings.