Mortimer and Mortimer

The Family Court of Australia heard an application by Ms Mortimer (the wife) for leave to institute property settlement proceedings against Mr Mortimer (the husband) out of time, pursuant to section 44(3) of the *Family Law Act 1975* (Cth). The wife and husband were married in 1993 and separated in 1994. The husband opposed the wife's application. In the alternative, the parties jointly sought declaratory relief under section 78 of the Act concerning their beneficial interests in their jointly owned family home.

The primary legal issue before the court was whether to grant the wife leave to commence property settlement proceedings under section 79 of the *Family Law Act 1975* after the statutory time limit had expired. A secondary issue, to be determined if leave was refused, was the nature of the parties' beneficial interests in their jointly held property, and the consequential orders to be made regarding its sale and distribution of proceeds.

The court refused the wife's application for leave under section 44(3). However, the parties jointly sought and were granted declaratory relief under section 78 of the *Family Law Act 1975*. The court declared that the parties held the family home as joint tenants. Consequently, the court ordered that the property be sold, and the net proceeds be divided equally between the wife and husband, with each party to bear their share of sale costs. The wife was ordered to indemnify the husband against any mortgage instalments due to Westpac Bank and any liabilities for rates and taxes on the property. Each party was to retain other property and bank accounts in their sole name. Leave was granted for the parties to restore the proceedings within 28 days to address specific terms of the sale, such as the selling agent and solicitor.