HUSBAND SEEKS FOR THE SALE OF THE MATRIMONIAL HOME WHERE THE WIFE AND HIS CHILD RESIDES
Farling & Alexopoulos (No.2) [2018] FCCA 4041 (22 November 2018)
This is a property proceeding, only at its interim stage, where the husband seeks for the sale of the former matrimonial home where the mother and his child resides.
Facts:
The husband seeks the sale of the former matrimonial home. The primary asset of the parties is the former matrimonial home. There is substantial equity in the property, which is subject to a mortgage of $590,000. The husband argues that neither party can afford to buy the other out, and that it is appropriate for the property to be sold on an interim basis.
The former matrimonial home is clearly the major asset of the parties. It is the husband’s complaint that neither party has at present a safety net, and that it would be of assistance if the property was sold and funds made available to each of them.
The wife has made submissions and provided evidence of options available which would arguably permit her to retain the former matrimonial home. Those are loans offered to her firstly by her sister, and further by her friend Ms L, both of whom are on affidavit. The wife argues that there are a number of ways in which she could improve her position, or be able to buy the husband out.
Issue: Should the court order the sale of the matrimonial home?
Held:
The wife and son reside in that property. The total of the mortgage is $546 per week. There are rates and expenses additional of some $92 per week, so a total of $638 per week. The husband is paying $590 per week for rent. The wife would no doubt be required to rent accommodation at similar expense for herself and the child were the house to be sold.
It is a serious issue to sell the former matrimonial home at an interim stage of proceedings, particularly in circumstances where one party seeks to retain the property, and it may be possible for her to do so. The court does not propose at this stage ordering the sale of the former matrimonial home.
Conclusion: The Court orders that the application filed by the husband be dismissed.
