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03 OCT 2013

David Hodson on International Family Law: There’s a Ghost in the Matrimonial Home and it’s not the Ex

David Hodson OBE

Family lawyer


International Family Law Practice by David Hodson

David Hodson

David Hodson in his international family law opinion piece describes the possible effect of a haunting of the matrimonial home on the divorce financial outcome, as set out in a judgment from a federal magistrate's decision in Sydney, Australia

 Family court judges around the world are given a very difficult task in ascertaining what is a fair division of financial resources and what arrangements are in the best interests of children. But sometimes a case arrives which takes family law justice into another world altogether.

 This was the experience of Federal Magistrate Scarlett sitting in Sydney earlier this year when the wife alleged that the matrimonial home was haunted and this should have an impact on the valuation. It is reported as Descas (2013) FMCAfam 69.

 It was a case with relatively modest assets and certain unhappy aspects. It is a very comprehensive and careful judgement of 169 paragraphs and testimony to the quality of family court justice at all levels of courts around the world.

 The judge dealt with the issue early on in his judgment. He said (para 33): "In a bizarre twist, the husband described how the parties had agreed to appoint a valuer, Mr P, to prepare a joint valuation of the matrimonial home. He deposed that the wife told him she thought the house was haunted. When he asked: that is the most ridiculous thing I've ever heard. Why do you want to stay there then? She replied: I'm staying in that house whatever it takes."

 The valuation was undertaken but then the wife's lawyers wrote to the valuer pointing out a number of drawbacks with the property including as follows: "Whilst we understand the difficulties present with the same, our client has specifically instructed us to include in these questions her belief that the property is haunted (which we are instructed the husband is already aware of). Would you please advise whether any of the above affects the value of the property." (para 43).

 According to the judgment (para 44), the valuer appeared to be rather amused by this request and with no doubt tongue firmly pressed towards an expert witness cheek responded as follows: "Exorcism is not one of our many speciality services and unless the ghost was held captive in the room to which we could not gain access, it must have been at lunch."

 The judge analysed the evidence, recording (para 67) that "the wife maintained her position that the house was haunted by a ghost, saying a lot of people in her street knew the house was haunted. She said in cross-examination that years after they moved into the house she "felt something" in one room. She claimed that her nephew actually saw the ghost some years ago. The haunting was confined to one room only", which the judge recorded was surprisingly enough (which one suspects was a judicial tongue in cheek) the room in which she slept.

 The judge concluded (para 69) on this part of the case by finding the account of the alleged haunting to be unbelievable and she was satisfied the claim was fabricated for an ulterior motive, namely an attempt to influence the valuer to return a low valuation of the former matrimonial home. He went on to find without too much difficulty that the wife was not a credible witness!

 Family courts are often regarded by the rest of the legal profession as deserts of hard evidence where any argument can hold sway. But there are limits. Visitations from another world, whether spectral or of the third kind, need to satisfy the normal burdens of proof!

 I am grateful to Collette McFawn of Watts McCray, Sydney, for passing on details of this case.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice. 

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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