Freedom Law

Offsetting occupation and expenses

Offsetting occupation and expenses

The Wife’s occupation of the matrimonial home and maintenance payments to the Husband

  1. The Husband sought that an adjustment by means of an addback be made for the fact that the Wife has had the use of the former matrimonial home since separation (see the unnumbered item following Item 26 in the balance sheet).  The Wife has not paid rent for that facility.  She occupies it with the parties’ adult son.  The Husband says that the Wife has benefited from the use of this property.  The Husband accepted that, although the property is in his name, this was a benefit derived from the property pool acquired during the relationship.
  1. At the same time the Husband accepted that by virtue of Orders made by Justice Watts he was receiving the sum of $495 per week towards his living expenses, which was paid from surplus rent monies received from the parties’ property.  Again, he describes that the source of that money was half his in any event (mirroring the position that he accepted in respect of the Wife’s enjoyment of the former matrimonial home).
  2. The Husband ascribes a value for the Wife’s occupation of the home from a rent valuation provided by T Real Estate.[10]  This report attributed a rental value, unfurnished at $1,100 per week.  The Wife points to the valuation of the rent being for both 1 and 2 D Street.  The T Real Estate report shows that 2 is rented at $495 per week, which it asserted is in line with the market.  The notional rental attributed to the Wife’s occupation of 1 D Street is approximately $600 per week.

    [10] Wife’s affidavit p 95.


  3. The Wife says that her occupation is offset by payment to the Husband from joint resources to support him.  That is, her accommodation, and his allowance for accommodation, both come from the resources of the relationship.
  4. It may be observed that the joint resources of both of the parties were used for the support of each of the parties.  The parties are each entitled, post-separation, to continue with their lives, and to use their resources to reasonably and properly support themselves.
  5. Noting the comments earlier referred to by Murphy and Kent JJ in Grier v Malphas, a sufficient reason, as driven by the pursuit of a just and equitable outcome, is not identified for an add-back or reckoning in respect of these matters.  While there may be a disparity, neither expenditure constitutes a premature distribution, or a waste, such as to mean that such a course is necessary to achieve justice and equity.  The disparity in the value of what each received in this manner, by their use of the matrimonial property, either to live in or to fund living expenses, is not of such significance as to justify a notional add back nor should it result in any other form of adjustment.