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Court orders husband to dig up parents’ ashes – By Abbi Golightly – QLS Accredited Family Law Specialist

In an interesting display of how the Court considers competing claims for the division of matrimonial assets, the Family Court in Sydney has ordered that the rural NSW property owned by the parties was to be transferred to the Wife, despite the Husband’s pleas that it remain with him, partially due to his having created a “memorial garden” for his deceased parent’s on the property.  The man was given 14 days to remove the headstones placed in the garden and dig up the urns containing his parent’s ashes.

Whilst controversial in its treatment of this particular issue, the fundamental issue for the Court was the consideration of what outcome was “just and equitable” or fair and reasonable when dividing up the assets of the relationship.

Each of the Husband and Wife wanted to retain the property as part of their property settlement.  The Wife maintained that she did not have the financial means to acquire a similar property in the same area (as the children attended schools locally and the Wife did not want to move out of the area) and told the Court that she was considering running a hospitality business from the property.

The Husband also maintained that he wanted to run a business from the property, converting the family farm into a commercial business and earn income from farming activities (despite already receiving an income of $160,000 per annum).

When weighing the competing proposals of parties as to how to practically implement property settlement Orders, the final stage of the process is a consideration of what is just and equitable between the parties.  This often involves a consideration of competing claims for the retention of certain items of property (both real property and other assets).  What is just and equitable varies from case to case and the judicial officer has a wide reaching discretion as to what Orders to put in place to give effect to the proportionate division of assets.

In this recent matter the Court weighed the Husband’s case and the Wife’s and decided that the Wife’s poor financial circumstances and inability to re-house the children in a similar property in the same area was of more concern for the Court than the Husband’s claim of wishing to retain the property that contained his parent’s ashes.

Whilst an extreme example of the kinds of competing claims that can be made for the retention of a certain asset, the judgment shows how the final stage of property settlement proceedings can make a dramatic impact on the practical outcome of them.

Should you wish to discuss your property settlement proceedings or a potential claim for property settlement, please do not hesitate to contact us on 07 5536 9777 or email info@attwoodmarshall.com.au or complete an online enquiry form.

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Hayley Condon

Hayley Condon

  • Senior Associate
  • Family Law
  • Direct line: (07) 5553 5805
  • Mobile: 0413 486 402