ON AN UNDEFENDED BASIS, HUSBAND SEEKS FOR SOLE RIGHTS OVER THE MATRIMONIAL HOME WHILE THE WIFE’S FORMER SOLICITOR SEEKS FOR PAYMENT OF LEGAL FEES
Deng & Galinski [2021] FCCA 843 (30 April 2021)
This is a property case where the court proceeded on an undefended basis in favor of the husband. The husband seeks that he shall have the sole right to their only property, which is the matrimonial home. In addition, the intervener (wife’s solicitor) seeks an order that the husband pay him the legal fees incurred by the wife.
Facts:
The wife in her Initiating Application sought final orders that the former matrimonial home be sold and the balance of the proceeds be divided 55% to her and 45% to the husband. Given her lack of engagement in these proceedings, it is unclear whether the wife still seeks these orders.
The husband seeks final orders that the wife’s property application be dismissed and that the husband be declared to have the sole right, title and interest in the former matrimonial home.
However, the wife has not attended before the Court since March 2020.
When the parties married, the wife had recently migrated to Australia and her employment skills and English skills were little to none. It is evident that she did not have much support around her as her family resided overseas.
The affidavit material filed by both parties indicates that the wife made contributions to the welfare of the family and at least minimal indirect financial contributions to the former matrimonial home.
The parties had a joint bank account into which they deposited their government benefits.
The wife deposes that she used her Newstart Allowance to support the family by paying for groceries and living expenses. Although the husband deposes that the wife did not make any financial contribution towards the family home aside from her Newstart Allowance going into the joint account, he also deposes that “[the wife] had regular and unfettered access to our joint account that she often withdrew money from and paid for food and other household expenses.”
Also, at the undefended hearing on 14 August 2020, the intervener sought orders that there be an alteration of property interests between the husband and the wife, and that the husband directly pay the intervener the sum of $30,684.23 by way of repayment of the wife’s legal fees.
Issue:
- Should the wife be entitled to a portion of the property pool?
- Should the court award the intervener the sum amounting to the wife’s legal fees from the property pool?
Law:
- Family Law Act 1976 S.79
Analysis:
To dismiss the wife’s application and make no orders under S.79 of the Act as sought by the husband, would be to ignore all the aforementioned material before the Court. The court is not satisfied that doing so would result in a just and equitable outcome between the parties.
It is evident that the wife made indirect financial contributions to the former matrimonial home, as well as contributions to the welfare of the family, whilst the husband brought in the one significant asset of the relationship and has made far greater post-separation parenting contributions.
Based on the evidence before the Court, it is just and equitable that there be a 10%/90% division of the property pool in favour of the husband. This equates to a sum of $811,800 to the husband and $90,200 to the wife.
As to the intervenor’s claim, the intervener seeks an order for direct payment by the husband of the wife’s outstanding legal fees as part of an overall adjustment of the parties’ property interests.
An order for property adjustment between the spouse parties must account for the wife’s outstanding legal fees in order to be just and equitable.
The court accepts the husband’s submissions that the intervener has no contractual relationship with him and has no claim against him personally for payment of the wife’s debt. The outstanding legal fees are a personal debt of the wife incurred post-separation and are her responsibility. There have been no debt recovery proceedings instituted by the intervener, nor a proprietary interest held by the intervener in the parties’ assets.
Conclusion: It is just and convenient to order that the husband pay the wife $90,200.00 by way of property settlement, less the sum of $20,000 sought by the intervener, which is to be paid by the husband to the intervener directly.