Unfortunately, as a result of delays in finalising matters, there will often be circumstances where one party has remained in the family home since separation whilst the other party has paid rent elsewhere. This is less of an inequity where the family home is encumbered and the remaining party is meeting the outgoings but where that property is unencumbered it can result in a significant inequity. The latter was the situation in Woodbridge & Woodbridge [2026] FedCFamC1F 211, which came before His Honour, Strum J, on an application by the wife to sell the former family home so that she may receive a lump sum, by way of partial property settlement, to fund the proceedings.
The parties were aged 79 (husband) and 74 (wife) at the time of this Application in a Proceeding and had been separated for approximately four years after a relationship spanning more than 50 years. Sadly, one of the parties’ five adult children was also involved in the proceedings, as the second respondent, personally, and fourth respondent by way of a corporate entity which he owned and controlled. The third, and fifth respondents were corporate entities owned by the husband and wife.
Prior to separation the wife had received an inheritance of around $500,000, $200,000 of which she had loaned to the third respondent who was of the view that he had no obligation to repay those funds. Pursuant to Consent Orders dated
1 March 2023 the wife was receiving a little over $3,000 per month from the income of an investment property, slightly more than 31%, whilst the husband received the balance. Accordingly, she had been funding her living expenses and litigation costs by using the balance of her inheritance, whilst the husband received more than double the income from the investment property whilst living rent free in the former family home. An added complexity was that the wife was in remission from cancer, for the second time.
The undisputed net value alone of the two properties, being the former family home and the property from which the parties were receiving rental income, totalled $3,875,000 with neither party seeking to retain the former family home as part of the overall settlement. The wife’s request therefore could not be considered unreasonable and yet it was resisted, notwithstanding that she only sought the amount of $300,000 from the sale of that property (around 30% after sale costs) and it was conceded by the husband that this was considerably less than her overall entitlement in the proceedings. Indeed, on the husband’s case the wife was to receive not less $1,937,000, and possibly more dependent upon the outcome of the alleged rights of the other four respondents.
His Honour set out the principles to be applied in such an application as determined by the Full Court in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466.
- Should the Court exercise its power, pursuant to sections 79 and 80(1)(h) of the Act3 to make a distribution of property prior to a final hearing; and
- If the answer to 1 is yes then whilst consideration must be given to the provisions of section 79 of the Act, there is no requirement of compelling circumstances.
The wife had provided the Court with a Costs Notice, as she was required to do, and it was evident that she sought no more than was needed to continue to fund the litigation, when combined with the balance of her inheritance monies. The husband could suggest no other source from which the wife could meet her litigation costs.
The thrust of the husband’s argument was that if the former family home were to be sold then he would be required to move and pay a bond, as well as rental. However, he did not seek any Orders for the release of a lump sum from the sale proceeds of the former family home, which would have been open to him and to which the wife’s counsel stated that she would consent.
Orders were made for a sale of the property, and the mechanisms to put that into effect, with the husband to vacate seven days prior to a settlement of the sale so that the wife may ensure that there was no impediment to that settlement.