It makes sense that any party to a marriage can bring an application for divorce – but what happens if one of the parties loses capacity?

General Timelines for Property Proceedings

It is not uncommon for clients to attend our office and say, “we separated years ago, but we just never finalised things between us.” In the case of de facto relationships this can be problematic as you only have two years to bring an application for property settlement. In the case of marriages, the limitation period for bringing property proceedings only begins ticking away once you have filed for and obtained a divorce order. You then have 12 months to bring your application. Otherwise, you may bring your application at any time prior to the divorce being finalised.

Litigation/Case Guardians Generally

It is important to remember that as you get older and your health declines, it may not be as simple as preparing and filing an application. What if you no longer have capacity – because of ill health, disability or because of a mental incapacity? While it is settled law that in property matters an application can be made on your behalf by a guardian (so long as they satisfy the Court’s requirements) it can be harder in divorce proceedings to bring such an application.

Guardians in Divorce Proceedings

The key elements you must satisfy to apply for a divorce are as follows:

  • The marriage must have broken down irretrievably; and
  • You and your former spouse separated and lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

One of the key elements is that the marriage has broken down irretrievably – that is – the parties have shown an intention to no longer be married, and act upon that intention. So, where a guardian intends to bring an application on your behalf, how do they show your intention to no longer be married?

In Price & Underwood (Divorce Appeal) [2009] FamCAFC127 (14 July 2009) a wife appealed the decision of the Court to grant a divorce to her husband’s daughter, who had brought an application for divorce on behalf of her terminally ill father. The husband had only a few days to live, and in the year prior had attempted to divorce his wife (an application that was ultimately dismissed for not meeting the requirements set out above). In that case, the daughter was able to bring the application on her father’s behalf as there was very clear evidence of his intention to be separated from his then wife:

 We conclude, having regard to the rules, that a case guardian may bring an application for a divorce order. A person who is a manager of the affairs of a party suffering a disability, including a person so appointed for the purposes of State or Commonwealth law, will qualify, subject to compliance with the rules, to be a case guardian…. However, the circumstances in which a Court will be satisfied on evidence presented by a case guardian in a marriage that it is irretrievably broken down are likely to be rare. This is one of the rare cases.”

Where the person has not shown a clear intention to be separated from their husband or wife – prior to losing capacity – it will be difficult to make such an application. The Court referred to a decision of Jennings & Jennings (1997) FLC 92-773 in which the husband, who was hospitalised by reason of his dementia, had never given any instructions the marriage was over, and the wife had no intention to bring the marriage to an end and still visited her husband in hospital. In that case the Court commented:

“… the administrator is empowered to handle the legal and financial affairs of a party but cannot possibly be empowered to handle “the affairs of the heart” or the most intimate aspects of the represented person’s mind and soul. I have no evidence of any intention by either of these parties to sever the relationship… and I conclude that separation has not taken place.”

Key Takeaways

Get your affairs in order! It is always important to reconsider your estate planning and your financial affairs whenever a significant life event occurs. If you do not update your wills, powers of attorney or enduring guardian, and later lose capacity without having resolved those issues, you may be exposing yourself and your estate to significant risk.

It is important to remember that even if you change your will after separation, former spouses and spouses are entitled to claim on your estate in the event of your passing and are likely to have a stronger claim if you have not reached a final family law settlement before your death. These are all issues which your estate will need to address and resolve, which will inevitably reduce the value of your estate. We encourage you to resolve your family law issues before it is too late to do so.

For assistance with your family law matter, or assistance with your estate planning following significant life events, contact us today and make an appointment to meet with one of our experienced solicitors.