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HUSBAND SEEKS COURT ORDER FOR THE WIFE TO PAY ALL MATRIMONIAL HOME DUES DESPITE HIM EARNING A HIGHER INCOME

Dealba & Dealba [2020] FCCA 2311 (1 September 2020)  

This case involves a husband seeking a court order that his wife pays all the rates and other outgoings over the matrimonial home and all the monthly repayments on the mortgage loans as secured by the property despite the disparity of income between the parties  

Facts:  

The husband has sought an order that the wife have sole right to occupy the matrimonial home pending its sale and that during such right of occupation the wife pay all rates and other outgoings of the real property, and all monthly repayments on the mortgage loans as secured by said property.  

The wife on the other hand sought that it is the husband who must pay out all loan accounts secured by the said property “at his sole cost”. 

The husband continues to earn high income while the wife is not in employment and her current income is derived from dividends received on her shareholding and interest on her deposits with financial institutions and rent from a property.  

Issue: Should the wife pay all the rates and other outgoings of the matrimonial home and all monthly repayments on the mortgage loans as secured by said property?   

Law:  

  • Section 79(1) vests the Court with power to alter the interests of the parties in property, and the power to make orders providing for the settlement or transfer of property, as determined by the Court.  
  • Section 79(2) However, the Court must not make an order under section 79 unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.   

Analysis:  

Payment of rates goes to ownership, not occupation, and accordingly the court will make an order that the parties be equally responsible for payment of all rates, both council and water rates, other than for specific water usage, in relation to the matrimonial home until sale.  

However, given the disparity in income between the parties, the court will not make an order that the wife pay all monthly repayments on the Westpac loan accounts secured by way of mortgage on the B Street, Suburb C property pending its sale, but will require their payment by the husband pending settlement of a sale.  

Conclusion:  

Hence, the payment of rates shall be paid by them equally and the loans to be paid by the husband pending the settlement of sale.

 

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