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Wife seeks 50 per cent of Property Division Against Husband

Danyon & Danyon [2021] FCCA 1400 (3 May 2021)

Wife sought a property division of 50 per cent and pursuant to which disclosed full financial assets. The Husband failed to make a full and frank financial disclosure. The Court, in deciding whether or not to grant the order sought by the wife was guided by the Holy Trinity principles. 

Facts:

The parties commenced cohabitation when they married in 1994 and they separated in August 2019.  Immediately following separation, the Wife paid one half of the mortgage payment on the matrimonial home and the Husband paid the other half.  One of the children continued to reside in the matrimonial home after separation of the parties.  The Wife ceased making mortgage payment when such child left the matrimonial home.

On 5 October 2020, the Wife sought an Order that there be a 50/50 division of the parties' property and superannuation entitlements. She also sought Interim Orders that the Respondent Husband, Mr Danyon (‘the Husband’), file his responding material within 21 days and an order that the parties' former matrimonial home be sold and the balance held on trust pending final order.   

Interim Orders of the 8 February 2021 and a letter dated 11 February 2021, were personally served by Mr E, the process server, on the Husband at the former matrimonial home.  Post separation, the parties were advised that the matrimonial home would achieve a significantly better value if the property was improved for the purposes of sale.  The Wife offered to finance such improvements on the basis that she would borrow the funds, some $10,000 to undertake those improvements.  The Husband failed to sensibly cooperate to have the property properly presented to sale for his benefit and the Wife's equal benefit.  Due to the Husband's failure to disclose necessary financial information, the Court was unable to determine all of the parties assets and financial resources.  The Wife made full and frank disclosure of financial assets to the Court. 

Issue:

Whether or not the Wife should be granted 50 percent of the parties' property and superannuation entitlements. 

Applicable law:

Family Law Act 1975(Cth), ss 75(2)79106A117 - provides for the matters to be taken into consideration in relation to spousal maintenance. 

Weir & Weir [1992] FamCA 69(1993) FLC 92-338 - used the three-leaf clover or the Holy Trinity as a basis of consequences in property litigation where there is nondisclosure.

Analysis:

Under the first limb of the Holy Trinity, the Court shall favor the party who complies with the duty of financial disclosure, in this case, the Wife.  The second limb draws the inference that some aspects of what the Husband has not disclosed does not suit the case.  The third limb would not be applicable in this case because it applies when the parties have told the Court that they have disclosed everything. The Husband never maintained that he has made full and frank disclosure. 

Conclusion:

The Court ordered that the husband pay the wife the fixed sum of $7,000 to be paid from the proceeds of sale.  The B Street, Suburb C property shall be placed upon the market and sold.  The parties shall do all acts and things and sign all documents as may be required to list such property for sale within 7 days of the date of these Orders with the Real Estate Agent agreed between the parties to be appointed.  If within twelve weeks of the date the property is not sold, the parties shall procure a sale by public auction. 

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