Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 13 January 2018.
Michael and Ruth married, lived together for two years and had a child together.
When their relationship broke-down, Ruth commenced proceedings in the Family Court.
The court found that the net assets of the relationship at the time amounted to $400,000. The court considered the contributions of the parties during a relatively short relationship and the earning capacity of the parties and ordered that Ruth receive 40% of the asset pool, amounting to $160,000. The parties complied with these orders.
They were formally divorced a couple of years later.
Ruth obtained sole custody of their child and received child-support from Michael.
Michael passes away, 20 years later, leaving an estate worth $5 million.
Ruth makes a claim for provision.
Ruth claims that Michael underestimated his income at the time of the Family Law proceedings and accordingly, had a duty to provide for her in his will.
The court notes that Ruth is able to make a claim against Michaels’ estate by virtue of being a former wife. The court examines Ruth’s relationship with Michael and considers her financial needs.
The court rules that there are “factors warranting” the making of an order in Ruth’s favour and orders that she receive $750,000 from Michael’s estate.
Michael’s executor appeals the decision, claiming that the decision is “divorced from reality”, “unrepresentative of community standards” and “wrong”.
The appeal court states that in most cases, a final property settlement in the Family Court will be seen as terminating a claim of a former spouse.
The court ultimately finds, in dismissing Ruth’s claim, that Michael’s alleged non-disclosure of income did not amount to dishonesty and that he had no obligation to provide for Ruth in his will.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
