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HUSBAND’S SISTER ASKS FOR PROCEEDS FROM THE SALE OF THE MATRIMONIAL HOME

 

Chandra & Johal & Anor [2020] FCCA 3113 (20 November 2020)

This case involves sale of the matrimonial home of the husband and wife where the husband’s sister asks for $150,000 from the sale of such home.

Facts:

All parties, including the second respondent, who is the sister of the husband, seek that the former matrimonial home at B Street, Suburb C, be sold.  The dispute is about what happens to the funds.

The husband and his sister seek that the sister be repaid $150,000, being sums allegedly contributed by the latter to the mortgage and other associated payments relating to the matrimonial home.  The husband additionally seeks that the resulting property pool (bearing in mind the dispute as to add-backs) be divided 80/20 in his favour. The wife, who seeks that the second respondent receive nothing, seeks that there be an equal division of the property pool if the add-backs for which she contends are included and a 65/30 split in her favour

Issues:

  • Is the sister of the Husband (Ms. Hora) entitled to receive a portion of the proceeds from the sale of the matrimonial home?
  • How should the remaining proceeds of the sale be divided among the husband and wife?

Law:

Analysis:

The husband has said, as so has Ms Hora, that the deal was that she would get paid $150,000 when the property was sold. In the court’s view, that deal should be given effect. It reflects in part the payments actually paid by Ms Hora. More particularly, it was the bargain done between the parties at the time.

Even were this not the case, given the amounts Ms Hora has advanced, it is, in any event, just and equitable that she receive the sum that she was promised.  It equates very closely with what she has actually spent.

Ms Hora should be repaid the $142,745 that she seeks. The court would have been prepared to order that she receive the $150,000 originally agreed but will accept the lower figure as a concession against interest.

As to the remaining proceeds of the sale, take into consideration all the relevant other matters.  The wife retains her super (and in terms of the total, like the equity concerned, is probably not an entirely insignificant matter).  The wife is slightly younger than the husband and has more earning years ahead of her.  Her earnings are at least in hard cash in Australian dollars, whereas his may be in rupees (although they may also be in Australian dollars if he works as an Uber driver).  The parties elected to keep their funds wholly separate during their relationship. The court does not accept that this is one of those terribly distressing cases where this forms some form of coercive or dominant controlling behaviour by the husband.  It is just the way he and the wife chose to conduct their affairs.  That decision clearly benefited both of them from time to time.

In a sense, what the court is saying is that they must both, as it were, stand by their bargain, save to the extent that the court overarchingly tries to impose a result that is just and equitable. A 60/40 division of the remainder of the property, once Ms Hora is paid out, is just and equitable.

Conclusion: Court orders than upon the sale of the matrimonial home, the husband’s sister must be repaid $142,745 while the remaining proceeds of the sale must be divided 60/40 in the husband’s favor.

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