…that husband pay wife’s mortgage, could only be a maintenance order
In Thorpe & Stirling  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.
It also 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 s82(4) of the Family Law Act 1975 (Cth).
Considering the order (order 36), the Full Court said (from ):
“ … [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 (…)
 … [P]roperty, as defined, is limited to existing property, whatever it may be (Stanford v Stanford  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 … (…)
 … [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’ (…)
 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.
 … [T]herefore, that order 36 could not be an order made under s79 of the Act … (…)
 … Order 36 can be seen as being made as a spousal maintenance order …”
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).