This interesting case involved a husband and wife, who by reason of the husband’s status as a diplomat, may be regarded as having had a truly international marriage.The Full Court of the Family Court of Australia in Pagliotti & Hartner (2009) FLC 93-393 dismissed an application for an Australian property to be determined under Italian law.
The wife was 73 years of age at the date of the Family Court’s Judgment. The husband was then aged 64 years. The parties married in 1972 in Australia and separated in 2002 in Rome. There were no children of the marriage. After their separation, the parties were engaged in extensive litigation in Italian courts. That litigation began in 2003.
There was a property in Australia which was the subject of the proceedings before the Judge in the Family Court of Australia. This property was in the sole name of the wife who occupied the property after returning to Sydney in September 2004 (after separation).
On 6 April 2006 the husband lodged a caveat against the title to the property claiming "an equitable interest of the caveator arising out of financial and non-financial contributions to the maintenance of the property".
By agreement between the husband and the wife, and after the proceedings were started in Australia, the property was sold. From proceeds of sale, the wife then purchased another property.
The wife was seeking orders for a property settlement in Australia and the husband was seeking orders that this application be permanently stayed and further, that a declaration be made declaring that the second property purchased by the wife was held by her on trust for him.
The Family Court Judge made orders dismissing the husband’s application to stay the wife’s property settlement applicant. The husband then appealed to the Full Court of the Family Court.
The Full Court held that Australia is not an inappropriate forum to determine the parties’ entitlements to the property in Australia, but the Family Court would, in fact, be an inappropriate forum to determine the parties’ maintenance rights and Italian assets.
The Court held that the Italian courts lacked jurisdiction to determine the beneficial ownership of the Australian property or the proceeds of its sale. The matter was not dealt with in the Italian proceedings as the Roman Tribunal were without jurisdiction.
The Court commented that the Roman Tribunal clearly anticipated that the husband’s pending application in the Family Court of Australia would determine those entitlements. The ability of either party to re-agitate the maintenance issue in Italy once their entitlements to the property are determined in accordance with Australian law reveals the harmonious coalition between the Italian and Australian laws.
In summary, if the husband and the wife own property in Australia and live overseas (being Italy in this case), then only the Family Court of Australia has jurisdiction to make orders in relation to that property in property settlement proceedings.