In determining how the property pool is split, the Court has previously highlighted the difficult and sometimes unique circumstances where one party may have sentimental value in an asset.
In one particular case, the Husband of the proceedings was given 14 days to retrieve the ashes of his deceased parents which had been laid in a memorial on the family farm. During the divorce proceedings, the farm had been awarded to the wife.
Where couples separate and are unable to decide how the assets of the relationship will be divided, the Family Court is able to decide on their behalf once an application has been made to the Court. This process essentially involves the Court looking at all the assets and dividing them between the two parties.
The relevant considerations taken into account by the Court during this process involve the contributions made by each party to the marriage (either financial, non-financial, or homemaker), whether one party has a greater financial need than the other, and whether the proposed property split is ‘just and equitable’ based on the circumstances.
In the case mentioned above, the Family Court determined that contributions made throughout the relationships were even, and, the wife had successfully argued the property could generate income through a bed and breakfast business.
As the Wife had not worked for approximately 18 years, the Court agreed that this option was the most likely option for the Wife to gain meaningful employment to sustain her financial needs. Consequently, although the Husband has a significant sentimental value attached to the family farm, he was forced to re-locate his parent’s ashes.
This case acts as a reminder that during Family Law proceedings, the Court does not adopt a single set of rules which apply to everyone. In property settlements, the Court continues to have the discretion to make orders which best suit the circumstances of the parties.
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