HUSBAND WANTS TO SELL THE MATRIMONIAL HOME TO PAY FOR HIS ACCOMMODATION AND TO FUND HIS LEGAL FEES
Selstead & Reidler [2020] FCCA 2794 (9 October 2020)
This case involves the father seeking the sale of the matrimonial house on the ground that he does not have ability to pay for his accommodation and that he cannot fund the legal fees.
Facts:
The wife effectively seeks not only sole use and occupation, and that the husband be restrained from entering the property. The wife and children are currently living in the former matrimonial home pursuant to orders made.
The husband’s response seeks the sale of the former matrimonial home. The husband has set out, it appears, two major grounds for seeking the sale of the property. The two grounds are the husband’s ability to pay for accommodation and also to fund legal fees.
Issue: Should the matrimonial home be sold or should the wife retain such matrimonial home?
Law
Analysis:
The court is not satisfied that the husband, who bears both the legal and the evidentiary onus to establish that the Court should exercise the discretion to require the sale of the house on an interim basis, has met the onus.
It is not satisfied that it is an appropriate case in which to make the orders he seeks in respect of both of his capacity to house himself and in respect of his legal costs, and also taking into account the fact that it is feasible that the wife may be able to retain the house.
As to the father’s ability to pay for accommodation, the husband’s Financial Statement states that his total weekly income as a factory worker is $1,430 per week and his total personal expenditure is $679 per week. As counsel for the wife pointed out $1,430 minus $679 = $751, so he has $751 excess income per week on his own Financial Statement. His current rent is only at $265 per week. He has $21,500 of excess income per year.
As to the second issue on ability to pay legal fees, he has got $8,500 in a bank account, which is the residue of the $85,000 he received; he also has an art collection worth, he says, $10,000. He also has the capacity to save something like $21,000 a year, so there doesn’t seem to be any need within the next two years or so for the husband to have access to funds in excess of what he currently has available either from his bank account or from his earning capacity.
Conclusion: The wife shall have the sole use and occupation of the property home.
