Family Law Property Adjustments: Sentimental Arguments are Not Always Persuasive

Family law property adjustment cases see a wide variety of reasons proposed and considered for keeping particular items of property.  Sentimental reasons are relevant considerations in that regard, but they are not the only consideration, nor are they always the deciding factor.  In Moss & Moss [2012] FamCA 538 (16 July 2012) Austin J had to consider the significance of a claim of sentimental reasons for retaining some real property. The following facts, with some minor editing on my part, are taken from paragraphs [141] to [146] of that judgment.

The husband desired sole ownership of the X property. He asserted he only reluctantly departed the X property following separation. Significantly for him, the urns containing the ashes of his deceased parents are kept in a memorial garden upon the property, making it a place of sentimental value. There is no evidence the ashes are interred and no evidence the memorial headstones are immovably fixed.

The asserted intention of the husband was to return to work on the X property as a farmer. However over the preceding four years the agricultural businesses conducted on the farm by the parties showed relatively poor financial performance and there was little evidence to suggest the husband could make the property particularly profitable as a commercial farming enterprise.

The property has never carried more than a couple of dozen animals and, although the property has olive trees planted on it, the husband admitted in cross-examination he had only ever sold 10-20 bottles of olive oil to guests.

The husband adduced no evidence of any formulated plan about how he could rationally transform the X property from a hobby farm, as it was regarded by the parties, into a genuinely commercial enterprise. The chances of the husband deriving income from the farm that would even remotely compare to his current income are inestimably small.

The husband conceded in cross-examination:

• The past income generated by the farm would not cover his current living expenses.
• That he may well need to obtain paid employment elsewhere.
• He was unsure whether his plans to farm X property would actually be successful.

The husband acknowledged:

1  The wife intended using the property to continue the hospitality business as a source of her income.
2  The wife had always worked hard:

• Around the house;
• In the garden around the “house block”; and
• In the conduct of the hospitality business.

The Court Held
1  The sole ownership of X property by the wife is the more just and equitable result.
2  The following considerations sway the decision:
•    The continuity of her occupation;
•    Her greater need for the property as a source of income; and
•    The transportability of the mementos of the husband.

3  The orders:
•    Make provision for the retention of the X property by the wife; and
•    Permit the husband a short period within which to attend the property to recover:
•    The ashes of his deceased parents; and
•    Any other sentimental accoutrement from the memorial garden.

Conclusion
The ultimate order in a family law property adjustment matter is required to be just and equitable between the parties on the facts before the Court.

The Court found a way to compromise the wishes of the parties here to give the husband the ashes of his deceased parents and any other sentimental accoutrement from the memorial garden, while ultimately enabling the wife to retain the property on which they were currently held. That compromise was held to be the most just and equitable outcome between the parties on the facts before the Court.

Decisions such as this one can often be difficult to make. However giving proper weight to items of sentimental value can aid significantly in planning family law property adjustments and can help ease the burden of the emotional difficulties dealing with such matters can cause.