When is a Final Order Dividing Property Between a Husband and Wife Not Final?

Posted by Daniela Poletti on 15 November 2017

Usually, after a property settlement the Court, either by consent of the parties or by Judge determination, will make Court Orders dividing parties’ property.  This may involve one party transferring the home to the other party and being paid a sum of money.  Where there are multiple properties, it may include each party keeping some of the properties and a sum of money being paid to one of the parties as an adjustment to ensure the proper percentage division of the assets.

Where Court Orders have been made, if one of the parties’ property or properties increases in value but the other’s does not or decreases in value, it is not something which a Court usually takes into account in an Application by one of the parties to set aside the Orders or to void the Orders but in the recent case of Blackwell and Scott the change in values of the properties to be kept by each of the parties was taken into account and new Orders were made.

The reason for this is that in the case of Blackwell and Scott the parties had agreed on an equal division of their assets.  It was drafted into Consent Orders and the Family Court made Orders in accordance with that agreement.

Under the Agreement/Court Orders, the Husband was required to pay to the Wife a sum of $130,000.00 within 90 days of the Orders so that each of the parties would receive an equal division of the property.  Also as part of the property settlement, the Wife was to retain one of the properties and the Husband was to retain the other.  The $130,000.00 was to make up for the difference in the values of the two properties so as to ensure an equal division of their assets.

Unfortunately, the Husband did not pay to the Wife the sum of $130,000.00 within 90 days of the date of the Court Orders as was required and in that time the property he retained rose significantly compared to the property retained by the Wife.

The Wife then made an Application to the Family Court to seek to set aside the Orders because of this substantial increase in value of the property to be kept by the Husband which would have the effect of skewing the agreement they had reached to divide their assets equally.

In that case, the Court did set aside the Orders and the basis upon which they did so was because the Husband had breached in complying with the Orders and had failed to pay the Wife the sum of $130,000.00 within the stipulated time frame.  The Judge determined that the position of the Wife had arisen as a consequence of the Husband’s breach of the Order and as a result of the Husband’s default in paying the money so that an equal division of the parties’ property did not, in fact, take place.

However, in other instances such as in the case of Babbington (2017), one party was required to pay the other party $33,000.00 within 45 days from the Orders.  The Wife was not able to refinance to pay her Husband the sum of $33,000.00 until the 47th day i.e. only 2 days late.  The Husband then took the matter back to Court and the Court held that it was not appropriate to set aside the Orders and an extension of 2 days for the Wife to pay the Husband was allowed.

The team at Selvaggio Lawyers are always on hand to discuss any Family or Property Law questions you may have. Contact us today for a confidential consultation.