In the recent case of Farnham & Farnham  FedCFamC2F 83 (“Farnham”), the Federal Circuit and Family Court of Australia (“FCFCOA”) considered the division of assets between the parties to a marriage of 20 years in length. Both parties wished to retain the family home, but neither was financially able to buy out the other party. The FCFCOA held that the property would be sold and the proceeds split. The case of Farnham highlights the difficulties of retaining joint assets with a large value following separation or divorce and also provides an insight into how the FCFCOA considers competing applications for retention of the family home.
Mrs Farnham (“the wife”) and Mr Farnham (“the husband”) were married and commenced cohabitation in 2000. The parties purchased the family home together in 2015 for $315,000. The couple then separated on 17 February 2020.
A few months after separation, the parties signed a Heads of Agreement, stating that, among other things, the property was to be sold. The husband later did not comply with the Heads of Agreement and refused to sell the property to a buyer for a price higher than the expected market value.
The wife then commenced proceedings in the FCFCOA seeking orders for the Heads of Agreement to be enforced.
The FCFCOA decided that the Heads of Agreement was not made in accordance with section 90G of the Family Law Act 1975 (Cth) (“the Act”). Therefore, the Court was not bound by the Heads of Agreement. Section 90G of the Act governs whether financial agreements are binding on the Court
Both the husband and wife sought to keep the family home, valued at $450,000, for themselves in preference to it being sold.
The court determined in it’s deliberations that neither party was able to prove that they were in the financial position to buy the other party’s share of the property at a fair market value, or that they had a right to the property under equity. Therefore, the FCFCOA determined that the property was to be sold.
This case highlights the struggles of retaining the family home after divorce, as financial difficulties can act as a barrier. The sale of the family home is usually the final outcome of property proceedings in the FCFCOA and can be a distressing outcome for the parties, who have normally spent a large portion of their lives in the home. Property proceedings in the FCFCOA are expensive endeavours and not many litigants are able to afford the high price of obtaining sole possession of the family home. It can therefore be said with regards to this case, that a negotiated settlement may have been more successful in an endeavour to retain family home than embarking on contested proceedings. A skilful and experienced negotiator may be your best ally when family assets are at stake
If you find yourself in difficulties with separation at the present time and require legal advice, contact our Family Law team today.
DISCLAIMER: The information contained in this article is general and is not intended to be advice on any matter. It is for information only and is not legal advice. In the event of a legal problem, you should seek legal advice.