27 September 2019
Property settlement – Rates adjustment not covered in consent orders
I have a matter where consent orders have been made for a property settlement. The wife has been occupying the matrimonial home, which is in joint names and has been paying the mortgage but not the rates. The wife intends to buy the husband out.
The consent orders do not contain an adjustment for council rates. Does an adjustment need to be made for the husband’s half share of the rates on payment of the settlement amount?
Thank you for the question.
Case law suggests no adjustment needs to be made.
In Dace & The Estate of the Late A Dace [2015] FamCAFC 215 the Full Court rejected the husband’s argument that silence as to mortgage outgoings and interest meant that both parties should contribute to these expenses.
Also, in Bass & Bass and Anor [2016] FamCAFC 64 the Full Court found at [54]:
- The ordinary rules of construction (including the principle of objectivity) as applied to the construction of contracts are applied in the interpretation of a Court Order …
- The fact that an inter partes contract/agreement was intended to be, and was in fact, given expression in orders of the Court must be taken into account …
- Where the terms of the Court’s order are sufficiently clear to govern the parties’ rights, the Court does not resort to extrinsic evidence of their intention …
The precise terms of the consent orders will inform the position.
Regards
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