WHAT WE ACHIEVED
“The Court held that the Wife who is opting to have the property fully transferred to her from the Husband will be solely liable for the ongoing liabilities of the property. This in effect saved the Husband from having to pay more expenses for the property which he will no longer be enjoying after the transfer.
When the Wife subsequently appealed to the Court of Appeal, Mr Silvester successfully argued against the points raised in her appeal and the appeal was dismissed.”
[Family Law – the division of matrimonial assets]
Mr Silvester was representing the Defendant who was the Wife/Husband in this case. In the initial order made by the Registrar, it was ordered that the Husband and Wife in this matter should jointly bear the ongoing liabilities and expenses pending the completion of the transfer. Mr Silvester argued that the Husband should not be jointly liable to bear the ongoing liabilities with the Wife in proportion to their share of the matrimonial home which was a condominium.
Ultimately, it was held that this decision on who should be liable is largely dependent on which party bears the risk of any rise or fall in the net equity of the property. In summary, if the receiving party is the only one who bears the risk of any rise or fall, it would be unfair for the transferring party to also pay for the ongoing liabilities because it would upset the status quo and the transferring party would only pay and get nothing in return.
Hence, in the event that the Wife opts to have the property fully transferred to her from the Husband, the Husband will no longer be liable to bear the ongoing liabilities and expenses of the Company.
At the Court of Appeal, the Wife attempted to appeal against the High Court’s decision for her to be solely liable for the payment of mortgage payments and property tax. However, the Court of Appeal accepted Mr Silvester’s arguments and took the position that the mortgage payments should be paid by who would eventually own the property and property tax should be paid by the order who should be taken to be the owner of the property. On both counts, her appeal was unsuccessful.