In a recent court decision released 11 March 2016 the FEDERAL CIRCUIT COURT OF AUSTRALIA considered the apportionment of the property between the husband and wife after the couple separated. The parties were 36 and 35 years of age with one child. The husband was self employed with no superannuation and the wife worked part time.
The husband remained in the family home which was the major item of property. Whilst the home was worth over 1 million dollars, it was heavily mortgaged and the net tangible assets were ultimately $638,001.91
In this case, referred to as Fenton & Fenton  FCCA 135, the court considered the settled propositions considering the division of matrimonial property after separation as espoused in the relatively settled and well-known decisions of Stanford v Stanford and Bevan & Bevan.
It was alleged that the Wife after separation removed $21,800 from monies able to be redrawn from the joint mortgage bank, doing so without the husband’s consent . In this matter it did not appear to be argued by the wife that she needed these funds to move out and set up an independent home (e.g. bond and relocation expenses etc). She stated that she needed these monies to pay legal costs. The husband argued these monies should have been considered as a “partial” payment of the ultimate property settlement given to the wife and in this sense it would need to be added back to the pool.
The wife argued that the court should not attribute these funds as partial property settlement to her as they were more properly seen as reasonable expenditure by her in the circumstances post-separation.
The court was ultimately not persuaded that the wife’s use of the $21,800 could be categorised as “reasonable post-separation living expenses” . The court found she had achieved a benefit for herself and reduced the property pool and in all of those circumstances justice and equity demanded that the $21,800 be considered as part of the property pool. The court “added back” the amount to the pool before it issued its final orders.
If you are a party having to move out of the home be careful of the traps that will haunt you at court. See the solicitor team at Alexander Law as we can help you identify these pitfalls so that you may avoid falling into them. A better property settlement for you will be the result.
The court made orders that the former matrimonial home be sold and that the property of the parties (excluding superannuation entitlements) be divided 70% of the net value to the wife and 30% of the net value to the husband
In this case as the husband did not have any superannuation the court ordered that nearly $19,500 be carved off her superannuation entitlements and be given to the husband under a superannuation splitting order.
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