Valuing the Asset Pool in Family Law Matters

Sometimes clients are surprised when I explain that in family law property matters we identify and value the asset pool at the current time. A common misconception I hear from people is that they believe the asset pool at the time of separation is what will be valued and considered and that assets acquired post-separation are automatically excluded from the available asset pool (incorrect). One of the reasons we consider the asset pool at present is because contributions continue post-separation. 

The case of Marsh & Marsh [2014] FamCAFC 24 ("Marsh") exemplifies the significance of ongoing post-separation non-financial contributions such as caring for children. This case involved a significant increase in the husband's wealth post-separation. The parties had been separated ten years prior to property settlement proceedings, over that period the asset pool grew up to five times its value due to the appreciating value of assets and the husband acquiring more property. At first instance the Trial Judge gave significant weight to the husband’s post-separation contributions and assessed contributions as 70/30 in favour of the husband, with a 10% future needs adjustment in favour of the wife. On appeal the Full Court considered the wife's non-financial contributions during the marriage and post-separation, which enabled the husband to build his career and wealth post-separation, to have been undervalued. From [61] the Court said:

"[61] In this case, the Federal Magistrate’s acceptance that the husband had made “the overwhelming contribution” to the investment properties, acquired after 2000, fails to give proper weight to that to which he referred in [68] namely the wife’s contributions as a homemaker and parent fails to give account to her indirect contribution to the husband’s career and thus his ability to make financial contributions.

[62] The parties settled on a way of life which had the wife attend to the family and not work outside the home. This clearly enabled the husband to give great attention to his career and work, confident that his home life and parental responsibilities were being well met. Indeed, in this case, the wife and children moved from place to place with the husband as his career path dictated. For a considerable period of time after 2000 the husband lived abroad and it fell entirely to the wife to meet all of the burdens of parental responsibility, albeit with financial assistance from the husband. The Federal Magistrate’s acceptance of the husband’s proposition that in some way the increase in and acquisition of the property after separation should in some way be segregated from consideration neglects the continuing indirect financial contribution of the wife to the husband’s earning capacity, commenced during the marriage and continuing to date of trial.

[63] The parties agreed that, up to separation, their contributions had been equal. What then had changed between separation and trial sufficient to warrant the Federal Magistrate’s conclusion that the husband’s post-separation contributions should be assessed at 70 per cent and those of the wife at 30 per cent? It seems that the issue operating on his Honour’s mind was the husband’s use of his very considerable earning capacity to support the family and to acquire assets after separation. For the wife’s part, she remained in the role adopted by her during the marriage, caring for the children and the home. It was not until 2008 that the youngest child completed final school exams.

[64] The assessment of parties’ contributions involves weighing the quality and extent of each contribution. It is accepted that the nature and character of those contributions may change, as here. During the cohabitation, the husband developed expertise and skills which have caused him to advance in his employment, skills and expertise which continued after separation. The wife has contributed to that ongoing earning capacity.

[65] Clearly then the husband’s submissions that the increase in property after separation should be regarded as being referrable to a contribution made only by him is to be rejected. It not only ignores the ongoing contribution of the wife to his income but further seeks, impermissibly, to confine contributions to a particular class or list of assets.

[66] The effect of the Federal Magistrate’s orders was to accept the husband’s argument that he had made the overwhelming financial contribution since 2000 but in which he failed to give effect to his findings that after separation the wife continued to make significant contributions both as to the home and children and also indirectly to the husband’s present earning capacity.

[67] Given the findings as to the wife’s contributions both up to and after the date of separation to which reference has been made, his Honour’s determination is “plainly wrong” so as to, in itself, justify appellate intervention."

The Court recognized the wife's ongoing contribution as primary parent enabling the husband to work and progress his career, income and wealth as significant. The wife also appealed the Trial Judge’s decision in relation to the 10% adjustment for future needs being confined to the non-superannuation pool. The Court found the percentage to be within the range but decided that the Judge had fallen into error by restricting the adjustment calculation to the liquid asset pool only. The appeal was allowed in relation to both grounds, and the matter was remitted for rehearing before a different Judge. This case highlights the importance the Court may place on continuing non-financial contributions post-separation, particularly in cases where there are children of the relationship.

Katherine Guilfoyle

19/02/2026