Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 13 May 2017.
When Harry and Sally separate, they affect a property settlement whereby Harry retains the matrimonial home on the basis that he pays Sally $130,000.
This figure is arrived at by way of an adjustment between the parties so that they each receive an equal share of their joint net assets.
The property settlement is formalised by way of consent orders that are filed in the Family Court. Under the orders, Harry is to pay Sally within three months.
Harry defaults under the agreement and does not pay Sally until 13 months later.
During this time, the value of the property increases by 25%.
Sally claims that the agreement is no longer “just and equitable” because at the time of payment, given the increase in value, Harry’s share of their assets is well in excess of 50%.
Harry refuses to pay Sally any more than the agreed $130,000 and Sally files a court application seeking to set aside the consent orders.
At the hearing, Harry argues that his delay did not “cause” the property’s value to increase.
In addressing the change of circumstances, the court noted that Harry’s delay in complying with the orders was lengthy and substantial. The court also notes that by the time Harry did comply with the orders, Sally did not receive anything close to 50% of the assets, which was the intent and effect of the orders at the time they were made.
The court ultimately found that by reason of Harry’s delay, the agreed equal division did not take place and in the interests of achieving justice, set aside the orders.
Harry was also ordered to pay Sally’s substantial legal costs.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
