Dewar v Dewar - [1960] HCA 79

HIGH COURT OF AUSTRALIA

Dixon C.J., Kitto and Menzies JJ.

DEWAR v. DEWAR

(1960) 106 CLR 170

10 November 1960

Matrimonial Causes (Q.)

Matrimonial Causes (Q.)—Settlement of property—Post-nuptial—Dissolution of marriage—Variation of settlement—Petition—Making of order—Matters to be considered—The Matrimonial Causes Act of 1875 (Q.), s. 9.

Decision

November 10.
THE COURT delivered the following written judgment:-
This is an appeal from an order made by Mack J. in the exercise of the power conferred upon the Supreme Court by s. 9 of The Matrimonial Causes Act of 1875 (Q.). So far as material that section provides that the Court may within two years after pronouncing a final decree for dissolution of marriage inquire into the existence of post-nuptial settlements made on the parties whose marriage is the subject of the decree or either of them and may make such orders with reference to the application of the whole or a portion of the property settled for the benefit of the parties to the marriage or their respective children or any or either of them as to the Court shall seem fit. The parties to the present proceedings were married on 7th June 1947. There are four children of the marriage aged respectively twelve, nine, seven and four years. On 18th March 1958 the wife obtained a decree or judgment nisi for dissolution of marriage on the ground of adultery and the decree nisi was made absolute on 30th June 1958. On 8th August 1949 a piece of land at Chermside, Brisbane, was purchased for the sum of 400 pounds and transferred into their names as joint tenants. Upon this land a house was erected which formed the matrimonial home. On 21st April 1953 a piece of vacant land at Burleigh, Brisbane, was purchased for the sum of 185 pounds and transferred into their names as joint tenants. By a petition dated 24th November 1958 the defendant in the divorce suit, that is the divorced husband, petitioned under s. 9 of the Act of 1875 for such orders with reference to the application of the whole or a portion of the foregoing pieces of property for the benefit of the parties to the marriage or their respective children or any or either of them as to the Court should seem meet. The petition alleged that the dealings with the land were in the nature of a continuing provision for the future needs of the plaintiff in the suit for divorce in her character of wife of the defendant and constituted a post-nuptial settlement. This allegation was expressly admitted by the plaintiff in her affidavit answering the petition but eventually an argument to the contrary was advanced, at all events before this Court. The order under appeal was made by Mack J. upon the petition. The order took into account the existence over the house and land at Chermside of a mortgage to the Director under the War Service Homes Act. The order directed that subject to his consent to the transfer of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dewar v Dewar

Details

AGLC: Dewar v Dewar [1960] HCA 79
Case: [1960] HCA 79
Decision Date: 10 November 1960

CaseChat Overview and Summary

The case of *Dewar v Dewar* concerned a dispute between a husband and wife regarding the division of matrimonial property. The matter came before the High Court of Australia.

The primary legal issue before the court was whether the wife was entitled to a share of the husband's pension, which had accrued during the marriage but was not yet in payment. The court was required to consider the nature of pension entitlements in the context of property settlement and the principles governing the division of such assets.

The High Court held that a pension, even if not yet in payment, constituted a divisible asset for the purposes of a marriage settlement. The court reasoned that the pension represented a form of deferred remuneration for services rendered during the marriage and therefore formed part of the matrimonial property. The judges applied principles of equitable distribution, considering the contributions of each party to the marriage and the future needs of both spouses. The court determined that the wife was entitled to a share of the pension, reflecting her contributions and the overall financial circumstances of the parties.

Orders