In the recent case of Higgins, which was before the Family Court in 2018, the questions arose as to whether or not a wife was entitled to a division of property under the Family Law Act.
The facts of this case were, the husband was aged 76 years, the wife was aged 43 years.
The parties met in 2006, at this time the wife was working as an escort, the husband became her client. The parties married in 2012 and separated in 2015.
The husband and wife never lived together during the course of the relationship and their marriage. In fact, the wife was residing and continued to reside throughout the marriage with her de facto husband. The wife had an eight year old daughter with her de facto husband. Throughout the parties relationship, which, in accordance with the wife’s evidence occurred in 2006, the husband supported her by paying for clothes, botox treatments, breast implants, rent and school fees for the wife’s daughter.
In 2010 prior to their marriage, the husband purchased a home for the wife in her name. Such home was purchased by way of finance from moneys borrowed from the husband’s company. The wife acknowledged that there was a loan to the husband on the property.
The home was purchased at Melbourne, the wife prior to the purchase of this home was residing in Brisbane. It was the wife’s evidence that she agreed to move to Melbourne to be financed and supported by the husband and to live in an unencumbered home or, as she referred to it in her evidence “a house with no strings attached”.
When the wife moved from Brisbane to Melbourne she continued to work as an escort.
When the relationship and marriage broke down, the husband’s company sued to recover the loan the financed the wife’s home. The wife opposed the application and sought that the home be declared as her asset. She, maintained that the loan should be considered as a gift to her. Further, she sought an order for spousal maintenance.
The Court said the marriage was “a commercial arrangement except with friendship considerations thrown in”. The parties never intended for their marriage to be for purposes of the protection of a relationship in the sense of a marriage.
It was suggested by the wife’s legal representatives that the husband benefited from the property being in the wife’s sole name for tax effective purposes. The loan was not referred to until after settlement of the purchase and the wife had no intention of repaying the loan to the husband’s company. The court said that “the wife thought the arrangement was just to help out the husband because of the tax problem”.
The Court determined that the wife could retain her interest in the home because “it was not just and equitable to alter the wife’s interest in the house on the basis of the contribution made by the husband and that he somehow did not get what he bargained for.”
The wife kept the house in her sole name to the exclusion of the husband. The wife’s request or spousal maintenance was dismissed.
The court determined that “just because the marriage had ended, or indeed because the parties were married at all, it does not follow that there will automatically be some form of property adjustment”.
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