MARRIAGE ACT 1958 - SECT 161 Questions between husband and wife as to property
MARRIAGE ACT 1958 - SECT 161
Questions between husband and wife as to property(1) In any question between husband and wife as to the title to or possession or disposition of property (including any question as to investment by one of moneys of the other without consent) either the husband or the wife or any person on whom conflicting claims are made by the husband and wife may apply to the Supreme Court or (at the option of the applicant irrespective of the value of the property in dispute) to the County Court.
S. 161(2) amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989 s. 16(Sch. item 38.1), 57/1989 s. 3(Sch. item 130.3(a)(b)). [2]
(2) In addition to and without in any way limiting the powers conferred by section 37 of the Supreme Court Act 1986 or section fifty of the County Court Act 1958 the Supreme Court or the county court (as the case requires) may, upon the application of any party to proceedings under this section, grant an injunction restraining any person from making any threatened or apprehended conveyance, assignment, sale, or other disposition of any property in question in the proceedings until the proceedings are heard and determined.
S. 161(3) amended by Nos 110/1986 s. 140(2) (Sch. 2), 19/1989 s. 16(Sch. item 38.2 (a)(b)). [3]
(3) Subject to the next succeeding subsection but notwithstanding any other Act or law to the contrary the Court may make such order with respect to the title to or possession or disposition of the property in dispute (including any order for the sale of the property and the division of the proceeds of sale, or for the partition or division of the property) and as to the costs of and consequent on the application as it thinks fit and may direct any inquiry touching the matters in question to be made in such manner as it thinks fit.
(4) Upon the hearing of any application between husband and wife under this section—
S. 161(4)(a) amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989
s. 16(Sch. item
38.3
(a)–(c)). [4]
(a) the Court shall not exercise the power conferred upon it by the last preceding subsection so as to defeat any common intention which it is satisfied was expressed by the husband and the wife and shall not take into account in exercising that power in relation to the property in question any conduct of the husband or of the wife which is not directly related to the acquisition of the property or to its extent or value; and
S. 161(4)(b) amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989 s. 16(Sch. item 38.3(a)). [5]
(b) husband and wife shall, to the exclusion of any presumption of advancement or other presumption of law or equity, be presumed, in the absence of sufficient evidence of intention to the contrary and in the absence of any special circumstances which appear to the Court to render it unjust so to do, to hold or to have held as joint tenants so much of any real property in question as consists of a dwelling and its curtilage (if any) which the Court is satisfied was acquired by them or either of them at any time during or in contemplation of the marriage wholly or principally for occupation as their matrimonial home.
S. 161(5)(a), amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989 s. 16(Sch. item 38.4(a)). [6]
(5) (a) For the purpose of giving effect to any order made under this section the Court may set aside any conveyance, assignment, sale or other disposition of any property in question in the proceedings if it is made to defeat an existing or anticipated order with respect to that property.
S. 161(5)(b) amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989 s. 16(Sch. item 38.4 (a)(b). [7]
(b) In exercising its powers under this subsection the Court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
S. 161(6) amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989 s. 16(Sch. item 38.5 (a)(b)), repealed by No. 57/1989 s. 3(Sch. item 130.7).
* * * * *
S. 161(7) amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989 s. 16(Sch. item 38.6). [8]
(7) The Court, if either party so requires, may hear any such application in private.
(8) If any person other than the husband or wife is the applicant such person shall in the matter of any such application for the purposes of costs or otherwise be treated as a stakeholder only.
S. 161(8A) inserted by No. 9002 s. 2, amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989 s. 16(Sch. item 38.7(a)). [9]
(8A) The power of the Court to adjourn a hearing or stay an order extends and shall be deemed to have always extended to the granting of an adjournment or the staying of an order where—
(a) the husband and wife are living separately and apart but have not lived separately and apart for a continuous period of 12 months immediately preceding the date of the order for adjournment or the order staying the order; and
S. 161(8A)(b) amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989 s. 16(Sch. item 38.7(b)). [1]
(b) the Court is of the opinion that—
(i) the adjournment or the staying of the order would not cause undue hardship to the husband or wife;
(ii) it is likely that proceedings for principal relief under the Family Law Act 1975 of the Commonwealth as amended from time to time will be instituted by the husband or wife within 12 months of the order for adjournment or the order staying the order; and
(iii) the matter would be more appropriately dealt with as ancillary to such proceedings.
S. 161(9) amended by No. 19/1989 s. 16(Sch. item 38.8).
(9) A husband or wife, instead of applying by summons or otherwise as aforesaid, may take proceedings in the Supreme Court or (at the option of the plaintiff irrespectively of the value of the property in dispute) in the county court, and the foregoing provisions of this section shall with such adaptations as are necessary apply accordingly.
S. 161(10) amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989 s. 16(Sch. item 38.9). [11]
(10) Where any question which could have been raised for decision in proceedings under this section arises between husband and wife in any other proceedings the Court shall decide the question as if the question had been raised for decision in proceedings under this section.