An 88-year-old man has won a High Court battle over his $1.3 million home after his wife of 41 years moved into a nursing home, prompting a family dispute over whether he should be forced to sell the property to pay her $612,000 share of their assets.

The unanimous High Court decision, handed down yesterday after an appeal against two decisions of the Full Court of the Family Court, ruled that the involuntary physical separation of the couple was not enough to show it was "just and equitable" to make a property settlement order.

The couple cannot be identified and are referred to in judgments as Mr and Mrs Stanford. Mrs Stanford died while the legal action was ongoing.

The couple married in 1971 and lived in their Perth home for 37 years until the woman moved to fulltime residential care after a stroke in December 2008. Mrs Stanford was later diagnosed with dementia.

Mr Stanford continued to live in their home and provided for his wife's care, setting aside money for her medical needs.

In 2009, the wife's daughter from a previous marriage applied to Family Court of WA on her behalf for orders for the matrimonial home to be sold and the proceeds, as well as other financial assets, to be divided equally between the parties.

Mrs Stanford's family wanted to secure her financial future and sought a lump sum to pay a $300,000 bond to improve the quality of her care.

At an initial hearing, a magistrate ordered the husband pay his wife $612,000, which represented her contribution to the couple's total asset pool of $1.5 million and would have forced Mr Stanford to sell his home.

The husband appealed but Mrs Stanford died before a judgment was delivered. In its first judgment, the Full Court of the Family Court found the magistrate had erred in making the property settlement order. In a second judgment, the court ruled that the money should be paid to her representatives upon his death.

In yesterday's decision, the High Court said Mrs Stanford had not expressed any wish to divide the couple's property, the order would have required Mr Stanford to sell their home and the Full Court had found the wife's need were being met or could be met by a maintenance order.

The West Australian

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