Ordinarily, the first step that the court would take in determining a property application is identifying and valuing the property of the parties. In this particular context, “property” has a broad definition and would typically include assets such as:
Sometimes property is acquired after the parties have separated. For example, in the recent Full Court decision of Calvin & McTier  FamCAFC 125, the husband acquired a substantial inheritance 4 years after the parties had separated. At trial, the magistrate determined that the inheritance should be included among the assets to be divided between the parties. The husband appealed against the magistrates’ orders on the basis that he had erred in relation to that finding.
The basis for the husband’s appeal was that the magistrate should not have included his inheritance among the property to be divided between the parties. This claim was predicated upon 3 separate grounds:
With regards to the first ground, the Full Court determined that it must fail. The absence of High Court authority cannot be marshaled as an argument either for or against a legal proposition concerning the application of the Family Law Act. In such cases, the legislation will “speak for itself.”
Ground 2 failed on the basis that it was contrary to established authorities, namely, the High Court’s decision in Stanford v Stanford  HCA 52. There is nothing in Stanford to indicate that property acquired post-separation should be treated differently. Instead, it indicates that all property is be brought into account without any reference the timing with which the relevant property was acquired.
Finally, the third ground failed for fundamentally the same reasons for which the second ground failed.
The Full Court did, however, find that the trial magistrate had erred in relation to the following finding. Namely, that had the inheritance been treated separately, the trial judge would not have been able to undertake the relevant inquiry under s 79(4) of the Family Law Act. The Full court determined that the relevant inquiry could be undertaken. The only difference would be that the inquiry would have been undertaken with respect to the inheritance and the remaining property. Regardless, the Full Court concluded that this was not a material error and the husband’s appeal was dismissed.
Calivin may be regarded as authority for the proposition that the assets acquired post-separation may be brought into account in identifying the property to be divided between the parties. That being the case, it should be borne in mind that inheritances acquired post-separation should be carefully considered when assessing contributions. This is because the spouse who did not receive the benefit of the inheritance is unlikely to have contributed to it.