The role of ‘sentimental value’ in property settlements
A recent Family Court decision has highlighted the hard, and sometimes unusual, decisions a Court has to take.
In the July 2012 case, a man was given 14 days to recover his parents' ashes from a memorial garden he had created on his family farm. The ashes were buried in two large urns, with commemorative headstones marking their location, next to a bronze bust of the man's father who had died first.
Unfortunately, the farm had been awarded to his former wife in a property settlement and he was therefore required to find another 'resting place' for his parents. Describing the decision as a 'kick in the guts' the man was not only upset about having to move the headstones and urns, but also the fact that the farm had been his parents home when they were alive.
This decision seems very harsh. How could this happen, I hear you ask?
Well, when a couple separates, if they can't reach a decision themselves as to how things will be divided, the Family Court will be called upon to make a decision for them and effectively 'divvy up' the assets of the marriage. When doing so, it will take a number of factors into consideration.
The Court will look at the total pool of assets and liabilities, the contribution each party made to the marriage (either financial or non-financial such as a stay-at-home parent), whether one of the parties might have a greater financial 'need' in the future, and finally how to make the property settlement 'just and equitable' based on all of the individual circumstances.
In the case above, whilst the Court found that their contributions to the marriage had been roughly even, the wife successfully argued that she could generate an income from the property by setting up a bed and breakfast style business there. After not working for around 18 years, the Court agreed that this was probably her best chance of earning an income. Her former husband on the other hand was in a relatively well-paid managerial role and he could rely on that for a future income.
So, even given the husband's huge sentimental attachment to the property, the Court found in the wife's favour and he is being forced to relocate the memorial garden. This just goes to prove that there are no 'hard and fast' rules when it comes to a property settlement. Every case is different and nothing should be taken for granted!
Coleman Greig Lawyers offers family dispute resolution services, or mediation, for couples trying to determine their own resolution to a property settlement or parenting arrangements. For more information, contact one of our experienced family lawyers for advice on ph 02 9635 6422.