Wife Seeks Transfer of Property Interest
Pederick & Pederick [2022] FedCFamC2F 208 (31 May 2022)
The wife seeks that the husband transfer his interest in the parties’ property to her. On the other hand, the husband seeks that their property be sold, and the proceeds be divided to affect a 60/40 per cent division in favour of the wife. The Court, in resolving this dispute, relied upon relevant jurisprudence and the Family Law Act 1975 (Cth).
Facts:
The wife, Ms Pederick (“the wife”) was born in 1964 in the United Kingdom and is currently 57 years of age. The husband, Mr Pederick (“the husband”) was born in 1976 in the United Kingdom and is currently 46 years of age. The husband moved to Australia with his family when he was a child. The parties met in the United Kingdom in early 2000 when the husband was visiting his father, who was terminally ill.
They commenced cohabitation in or about 2000 and were married in 2002. At the commencement of the relationship the wife had three children from a former marriage; W born 1989, X born 1992 and Y born 1994. At the time of cohabitation, the children were ten, seven and six years of age respectively. Unfortunately, the children’s father passed away about a year prior to the parties’ relationship.
As such, the wife’s children lived with the parties on a full-time basis. The parties have one daughter together, Z born 2003 (“Z”). The parties, together with all of the children, migrated to Australia in late 2006. The parties separated under the same roof in or around 2012, and physically separated when the husband moved out in late 2012/early 2013. They were divorced in 2020.
The wife seeks orders as set out in her Case Outline filed 1 December 2021. In essence, she seeks that the husband transfer his interest in the parties’ property located at B Street, Suburb C, South Australia (“the Suburb C property”) to her, and that the parties otherwise keep everything else in their name or possession, including their savings and their cars. The husband seeks orders as set out in his Case Outline filed 21 February 2022, namely that the Suburb C property be sold, and the proceeds be divided to affect a 60/40 per cent division in favour of the wife.
Issue:
Whether or not orders should be made in favor of the wife.
Applicable law:
Family Law Act 1975 (Cth) Pt VIII s 79(1) - authorises the Court to make such orders between the parties as it considers appropriate.
Family Law Act 1975 (Cth) Pt VIII s 79(2) - makes it clear that the Court cannot make an order for property settlement unless it is just and equitable to do so.
Analysis:
There is no presumption that the parties’ entitlements in the existing asset pool should be altered, or that one party has the right to have the property of the parties divided between them only on the basis of the considerations in s 79(4) of the Act. Both parties made contributions, financial and otherwise, which may not be appropriately recognised if the Court does not determine to make an order for the adjustment of property. The marriage was a joint venture, the parties pooled their limited incomes for the benefit of the family and paid for expenses as they arose. Although the wife was the primary carer and primary homemaker, the husband assisted, in particular when she was unwell.
The wife’s evidence was very black-and-white and it seemed she found it almost impossible to give the husband credit for any contributions to the relationship. The wife is no doubt aggrieved by the fact that even if she receives the entirety of the pool, she will be financially worse off than when the relationship commenced. In terms of the non-superannuation property of $217,150.00, 25 per cent of that pool is $54,287.50. The husband has a car valued at $1,000.00 which would make a nett payment to the husband of $53,287.50. However the husband’s LSC debt is currently secured against the Suburb C property.
In the event the wife is able to retain the property, the husband’s LSC debt would need to be repaid so the LSC charge can be removed. The wife will continue to receive ongoing pension payments beyond what would have been her retirement age.
Conclusion:
Within sixty days, the wife, Ms Pederick is to pay to the husband the amount of fifty thousand, one hundred and one dollars and sixty cents ($50,101.60) and pay to the Legal Services Commission of South Australia the amount of three thousand, one hundred and eighty five thousand dollars and ninety cents ($3,185.90) on behalf of the husband in full payment of his debt to the Legal Services Commission of South Australia. Contemporaneously with the cash payment and the LSC payment, the husband do transfer to the wife all of his right, title, estate and interest in the property situate at, and known as, B Street, Suburb C in the State of South Australia, being the whole of the land comprised and described in Certificate of Title Register. The costs of the preparation, stamping and registration of the transfer and any other costs in relation thereto be paid for by the wife.
