Manfield & Scriver

In *Manfield & Scriver*, the Family Court of Australia considered an application by a de facto husband for the urgent sale of the former de facto matrimonial home. The property was registered in the sole name of the husband, while the wife occupied it. Both parties were unrepresented. The core of the dispute was the significant arrears on the mortgage, with the mortgagee threatening foreclosure, and neither party having the capacity to meet the repayment obligations. The wife sought to retain the property but had made no mortgage repayments since separation and had substantial personal liabilities, with no evidence of her ability to refinance.

The legal issues before the Court were whether compelling circumstances existed to order the sale of the property, despite the wife’s desire to retain it, and how the proceeds of any sale should be managed pending a final property division. The Court also had to consider the immediate threat of a mortgagee sale and the potential financial detriment to both parties if such a sale occurred without court intervention.

Judge Kirton QC found that compelling circumstances did exist for an immediate sale. The Court noted the substantial mortgage arrears and the imminent threat of foreclosure by the mortgagee, which would likely result in a sale with no regard for the parties' equity. The wife's inability to refinance or service the mortgage, coupled with her significant liabilities and lack of evidence of financial capacity, weighed against her retaining the property. The Court applied the principle that in situations of financial distress and imminent mortgagee action, an interim sale may be ordered to preserve any equity in the property for the benefit of both parties.

The Court ordered the sale of the property, with the proceeds to be applied first to sale costs, then to discharge the mortgage and any other encumbrances. The remaining balance was to be held on trust pending further orders for property division. Pending the sale, the wife was granted exclusive occupancy of the property, and both parties were ordered to contribute to insurance costs. The orders also detailed a process for selecting a selling agent, setting a listing price, and stipulated that if the property was not sold within 120 days, it would be listed for auction. The wife was also ordered to remove a caveat she had placed on the property.