Family Law, Capacity and Death

Harry and Wendy have been married for 10 years.

When the relationship deteriorates, Wendy moves out of the jointly owned matrimonial home.

There are no children to the relationship.

Harry and Wendy continue to reside separately for 10 years, before Harry is diagnosed with Alzheimer’s Disease. He appoints his son Peter, from a previous relationship, to manage his financial affairs under a power of attorney.

Peter commences property proceedings under the Family Law Act against Wendy and files an Application for Divorce on Harry’s behalf as his “litigation guardian”.

Peter seeks orders that the matrimonial home be sold, and that Harry receive the whole of the proceeds of sale.

Wendy claims that although they did not reside continuously under the same roof, their relationship continued. She says they often stayed over at each other’s residences and cites holidays that were taken together after she moved out.

Centrelink records do not support Wendy’s claims.

The Court has difficulty in its attempts to “retrospectively piece together the history of the parties”, given Harry’s worsening condition and Wendy’s “contradictory” evidence, with the Court finding her to be an “unimpressive witness”.

Nonetheless, the Court considers the parties’ respective financial and non-financial contributions, the contributions made by each party as homemaker and parent, the effect any family violence has had on a party’s ability to make contributions, and the effect of any proposed order upon the earning capacity of either party.

The Court notes that when Harry retired, shortly before meeting Wendy, he owned the matrimonial home solely and had a substantial superannuation fund. Wendy brought $50,000 into the relationship and did not obtain paid employment during the relationship, stating that she attended to domestic duties and Harry’s ongoing care.

The Court reserves its decision.

Unfortunately, Harry passes away, before the decision is delivered.

Ultimately, the Court rules that Harry’s estate is entitled to receive 77.5% of the property pool and Wendy is to receive 22.5%, equating to around $130,000.

The parties pay their own legal costs.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law [email protected] call him on (02) 66 487 487. This fictional column is not legal advice.