By and -

Key decisions

  • Thorpe & Stirling [2021] FedCFamC1A 86
  • Tomaras [2021] FedCFamC1A 82
  • Bonner & Chandler [2021] FedCFamC1A 81
  • Glover & Webster [2021] FedCFamC1A 69


Consent order (made as part of property orders) that husband pay wife’s mortgage could only be a maintenance order

In Thorpe & Stirling [2021] FedCFamC1A 86 (15 December 2021) the Full Court (Aldridge, McEvoy & Altobelli JJ) allowed an appeal from a decision of Judge Kemp where a final consent order required the wife to sell a property and provided that she receive $430,000 of the sale proceeds on the basis that the husband would be guarantor and pay mortgage payments on a future loan of up to $500,000.

The order provided that the husband would continue to pay the mortgage until its loan balance was discharged. The husband refused to pay after the wife re-married, contending that the order was a spousal maintenance order that had no effect upon re-marriage per s 82(4) of the Act.

Considering the order (‘Order 36’), the Full Court said (from [20]):

‘ … [T]he husband’s liability under the mortgage remains until it is paid out. … [T]hat liability could … exceed what the husband otherwise received under the … orders …

[26] … [P]roperty, as defined, is limited to existing property, whatever it may be (Stanford v Stanford [2012] HCA 52 … ), and does not extend to property that might be received in the future … [Section 79] does not empower the Court to make an order against property which does not presently exist but could be brought into existence by the exercise of borrowing capacity …

[36] … [H]is Honour found … the husband’s obligations under Order 36 “were likely to be paid out of the husband’s future income stream including his receipt of any … bonus payments” …

[37] Order 36 does not work an alteration of the interests of the parties in their property but rather creates an obligation which is separate to the division of that property.

[38] … [T]herefore, that Order 36 could not be an order made under s 79 of the Act …

[45] … Order 36 can be seen as being made as a spousal maintenance order …’

You've reached the end of this article preview

There's more to read! Subscribe to LSJ today to access the rest of our updates, articles and multimedia content.

Subscribe to LSJ

Already an LSJ subscriber or Law Society member? Sign in to read the rest of the article.

Sign in to read more