Marriage Does Not Create Mutuality
An argument I still see from time to time in liquidations is: my spouse is owed money by the company, so that should offset what I owe the company.
Usually, it does not work.
Section 553C of the Corporations Act requires mutuality before there can be a set-off. That means the debt must be between the same parties, acting in the same capacity, with the same beneficial interest.
If the company owes money to one spouse, but the other spouse owes money to the company, there is no mutuality. Marriage does not create mutuality.
I often see this argument where one spouse has a loan account with the company, the other spouse has an overdrawn loan account, one spouse is owed wages, or the other spouse owes money back to the company.
When a company goes into liquidation, the legal position matters more than the family relationship.
