One in six Australians these days is aged over 65, as our country’s population continues to age. With this increase in older Australians in recent decades has come an increase in the number of older couples getting separated—a phenomenon sometimes termed the ‘grey divorce’.
But when it comes to older people getting divorced, there are numerous factors that can quickly make the process very complicated. For a start, older parties tend to have far more complex financial circumstances. And things can get much more complicated if the matter involves a second marriage and children from prior relationships.
With elderly parties, there can also be questions around mental capacity, or even disputes over whether a couple was “separated” for family law purposes (if the separation was involuntary, such as by admission to an aged care facility).
Complicating matters further is when an elderly party dies during court proceedings. Property proceedings can be continued after the death of a party, or even both parties, by their estates. But, in making subsequent orders, the court has to be satisfied that it would have made a particular order if the deceased party had not died and that it is still appropriate to make the order regarding property.
In all property settlement cases, the court must determine whether settlement orders are “just and equitable”, particularly in circumstances where parties were involuntarily separated due to health and age reasons. These are complex questions and issues, some of which came into play in a recent property settlement case we handled.
Our client’s story
We acted for the wife in property proceedings after a 25-year marriage. It was the second marriage for each party, who both had several adult children.
The husband invited the wife to live in the husband’s home. At the start of the relationship, the wife owned a property in the same street as the husband. This later sold and the sale proceeds were applied to the assets of the marriage.
The couple’s separation occurred when the husband was forced to move into a nursing home due to his ailing health. His adult children asserted on his behalf that this constituted separation and they commenced court proceedings as litigation guardian. They sought that the wife receives a very nominal amount of the asset pool available and that, effectively, the husband’s house should be treated as his alone and not an asset of the marriage.
Sadly, the husband passed away during the course of the proceedings. The executors of his estate continued the proceedings on his behalf.
Due to the wife’s ill-health, a litigation guardian was appointed on her behalf. It was of the utmost importance to the wife’s children that she lives comfortably in a nursing home and she required access to funds from the property settlement to be able to do this.
The wife was successful at trial. This was then appealed by the husband’s adult children, who were ultimately unsuccessful.
The wife then sought a costs order. Tragically, before the matter proceeded to a hearing as to costs, the wife also passed away.
The husband’s legal representatives argued that there should be no order as to costs as the wife no longer had future needs as a result of her death.
At trial, the issue was whether the wife should receive a larger percentage of the asset pool by way of property settlement. On appeal, the issue became whether the trial judge had made a mistake in providing the wife that larger percentage. Finally, as to costs, the court was tasked with determining whether there should be any order, given that the wife was now deceased and a large percentage of the pool had already been provided to her at first instance for future needs.
What we did
There was a large volume of work to be completed to prepare for trial, appeal and the subsequent costs hearing. Due to the level of complexity involved in the proceedings, both counsel and senior counsel were involved.
Our experienced family lawyer Dominique Markwort, who also specialises in deceased estates, was responsible for liaising with counsel and the client, preparing all necessary court documents, and instructing counsel at the trial, appeal and costs hearing.
We were ultimately successful at trial and received a percentage of the pool by way of property settlement that provided the wife with the ability to reside in a nursing home for her final years of life.
On appeal, the estate of the husband was unsuccessful and the decision remained.
In relation to the costs, we were successful in obtaining a portion of the wife’s legal costs that had been incurred during the course of the proceedings. This gave some comfort to the children of the wife.
Family law matters involving elderly parties can be especially challenging, requiring expert navigation around specific, complex legal issues. If you have a concern about a family law matter, we have specialists who can help you right now. Please get in touch with our expert Central Coast lawyers who can offer you sound legal advice and a fresh approach. Contact us today to make an appointment.