“She’s not getting the house”….so this happens!

Ross Dunlop
Consultant
Barrister and Solicitor

Posted on 13/09/2017, Last Updated on 20/03/2019

As a family lawyer with 20 years’ experience in trying to resolve some of the most bitter, intractable disputes between separating spouses, there are occasions when you think you’ve seen it all. Then, something happens that restores your belief that there are no lengths to which someone will go to “get one over” on the other party in a divorce.

Mr Kovacevski was one such individual. In the wee small hours of 4 August 2016, the emergency services found 75 year old Mr Kovacevski in the granny flat of his Wollongong home, passively watching his property go up in flames. He was accompanied by his pet dog.

“I’m just watching”, was Kovacevski’s response to a police officer trying to remove him from the scene.

Two weeks earlier, the Federal Circuit Court had decided that, in accordance with well-established family law principles, Mr Kovacevski’s house had to be transferred to his ex-wife, and Court Orders were made to that effect. Mr Kovacevski, however, had different ideas, and considered that burning down his property was the better option.

As a result of his actions, Mr Kovacevski was charged with the offence of destroying property – which can carry a penalty of up to 10 years imprisonment. However, the offence is only committed if that property belongs to another person (or is jointly-owned) when the destructive act takes place. Under criminal law, Mr Kovacevski claimed to have a legal defence to his conduct because the property belonged entirely to him at the time.

However, family law is not so lenient. In the seminal case of Kowaliw & Kowaliw (1981), the following was stated:

“As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage, whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:

  1. where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth or matrimonial assets, or
  2. where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.”

Accordingly, if one party deliberately or recklessly destroys a matrimonial asset – with the express intent of depriving its retention by the other party – the Court is very likely to re-dress the balance by awarding the prejudiced party a greater share of the remaining asset pool.

Accordingly, you should think twice before acting out of spite, rage or vengeance when ownership or control of relationship property is destined for the other party. Don’t blow it all at the casino. Don’t give it all away to charity. And don’t burn down the house!

Of course, the principle in Kowaliw doesn’t help if there are insufficient other assets available to “compensate” the wronged party. Mr Kovacevski’s house was uninsured, and other assets were minimal. Even if Mrs Kovacevski was legally entitled to be reimbursed or compensated for the losses she suffered by her husband’s extreme actions, the Court cannot conjure up assets from nowhere.

In June 2017, Mr Kovacevski was found guilty of destroying the property, with the Magistrate finding that as the transfer papers had actually been signed and lodged the day before the fire, Mrs Kovacevski was the legal owner of the property at the relevant time. But with no other assets to speak of, the conviction is likely to be of cold comfort for the wife.

If you are separated and experiencing the trials and tribulations of property settlement, you should obtain legal advice from a firm knowledgeable in the area of family law. Such advice could entail obtaining an order that the real estate be kept insured pending transfer…For further advice regarding matrimonial and de facto property settlement, call DS Family Law on 9486 1766 or visit www.dsfamilylaw.com.au.

The above information is general in nature, and is not specific advice for your situation. If you have questions about how the information contained this article may apply to your situation, you must seek independent legal advice.

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