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In the Marriage of Greer (1985) FLC 91-645

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In the Marriage of Greer (1985) FLC 91-645

Introduction

The family law case of Greer & Greer (1985) FLC 91-645 (31 October 1985), was heard in the Family Court of Australia at Dandenong, His Honour Justice Barblett

This was an application brought by Mr Greer (“the husband”) after he made a payment of $25,000 to Mrs Greer (“the wife”) and the husband wanted the money back.  The payment of $25,000 was made after a section 79 property settlement had been completed and was not a part of that property settlement or orders issued through those proceedings.

The husband brought the proceedings on the following grounds under the Family Law Act 1975 (Cth) (“the Act”):

  1. Part VIII, Section 79 – Alteration of property interests.
  2. Part VIII, Section 85A – Anti-nuptial and post-nuptial settlements.
  3. Part VIII, Section 78 – Declaration of interest in property.
  4. Part XV, Section 119 – Married persons may sue each other.

Under sections 79 and 85A of the Act, the husband sought a second alteration of property interests pursuant to section 79 that the payment of $25,000 was a post-nuptial settlement which could be taken into account by the court under section 85A and that based on the previous property settlement it would be just and equitable for the $25,000 to be returned to the husband.

Under sections 78 and 119 of the Act, the husband sought a declaration that the $25,000 was property owned by him and he relied on section 119 of the Act that a husband may sue a wife in order to try and recover the money from the Wife.

Justice Barblett found that the husband’s payment of $25,000 to the wife constituted a gift and as such the Court had no jurisdiction to make a property alteration pursuant to section 79 of the Act as a prior property settlement has been completed, nor a declaration of property pursuant to section 78 of the Act as it was not property that the court had jurisdiction to make a declaration of property for.

Applicable Law

Family Law Act 1975 (Cth)

Background

In April and May 1985, the wife obtained injunctive orders against the husband from the Frankston Magistrate’s Court for her personal protection. 

The wife then filed an application in relation to custody and financial matters in October 1984.  The parties attended and were represented by solicitors at the first return of the family law proceedings in November 1984 where final orders were made by consent.

The final family law orders provided for the parties’ house to be sold with the wife to receive from the sale of the house, $50,000 and the husband to take the balance being $26,799.90.  This finalised the property settlement between the parties.

The wife and husband met up at a café after the property settlement had been finalised.  The wife stressed that her financial situation was difficult and that the children would be affected.  The husband stated that if it was necessary, he would provide a cheque of $25,000 to the wife.  The wife then stated that if the husband did pay her $25,000, she would "marry him again".  The husband was of the view that a reconciliation might occur.

The husband then obtained a bank cheque in December 1984 for $25,000 and sent this to the wife.  The wife then filed an application for dissolution of the marriage in February 1985 (a divorce).  A decree nisi was granted and became absolute on 11 May 1985.

The husband then brought these proceedings.

Section 79 Alteration of Property Interests

The husband claimed that the $25,000 was property of the marriage under section 79(1) of the Act and pursuant to the definition of property pursuant to section 4 of the Act and that the Court could exercise power under section 80 of the act to alter property interests and return the $25,000 to the husband.

Justice Barblett referred to Mullane v Mullane (1983) FLC 91-303 as authority that once a section 79 alteration of property interest order has been made effecting all property of the marriage, that no further section 79 application can be made, save for an alteration of the final orders under section 79A of the Act which was not a ground of these family law proceedings.

Section 78 Declaration of interest in property

The husband sought a declaration from the court that the $25,000 belonged to the Husband.

Justice Barblett stated that section 78(1) “is to do no more than ‘declare the title or rights, if any, that a party has in respect of the property’”.

Justice Barblett found that the $25,000 payment made by the husband comprised of a perfected gift of money from the husband to the wife.  As a gift, the husband had no further right to the money.  As such, the only declaration as to property that could be made was that the wife had received a gift of $25,000.  As such, Judge Barblett had no authority to make the order sought by the Husband.

Conclusion

Justice Barblett dismissed the husband’s family law proceeding for want of jurisdiction.

The husband brought proceedings under section 79 of the Act, after final orders were already made under section 79 of the Act.  Clearly, an exercise by a court of competent jurisdiction under section 79 prevents a further order being made under section 79 for the same property already dealt with (but this should not be confused with appeal rights).

The husband sought a declaration from the court, that he owned the $25,000 provided to the wife.  Justice Barblett found that the payment was a perfected gift from the husband to the wife and as such, the court had no legality to declare that the $25,000 belonged to the husband.

The husband's and wife’s discussion around the payment of $25,000 and the wife subsequently saying I would marry you again if you did amke the payment, was not a contractual relationship under the contract law domestic agreement principle.  It is worth noting that at the time of the conversation that parties had separated, but it was not argued that the marriage had irretrievably broken down at that point as the parties were not divorced.

The husband seeking to rely on section 85A of the Act, attempted to have the $25,000 payment considered as a post-nuptial settlement.  Justice Barblett found that the payment was not a settlement in nature as a property settlement had already occurred.  Justice Barblett concluded that the payment was made by the husband to help the wife with financial hardship, rather than in the character contemplated by section 84A post-nuptial settlement.

Justice Barblett cited Prescott v Fellowes (1958) 3 All E.R 55, where Hodson J at 60, made the distinction between a payment from unsettled property or payment from settled property.  If there has been a payment from property that has already been the subject of a property settlement, it could hardly be said that a payment is made in contemplation of a property settlement and therefore be a post-nuptial property settlement.

In any case, section 85A provides no jurisdiction to the court to make a declaration, an alteration or adjustment of property alone.

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