What is an involuntary separation of married or de facto partners? When a partner’s health deteriorates to such a degree that they can no longer be cared for at home, is the marriage over and if so, how does this affect a person’s last will?

A divorce order affects a persons’ will in that it voids any appointment or gift to the former spouse. Partners living separately and apart for at least 12 months are eligible to apply for a divorce on the grounds the marriage has broken down irretrievably. This would include a situation wherein one partner is living in an institution or hospital.

Is There Intention?

There must be an intention to separate and the intention must be communicated: Price and Underwood [3009] FamCAFC. 

If one of the partners lacks capacity to communicate their intention, then a guardian appointed under the Family Law rules may act on their behalf and commence proceedings for divorce.
Price and Underwood concerned an application for divorce filed by the husband’s daughter as his case guardian. After telling his daughter that he wanted to separate from his wife, the husband became unconscious and could no longer take part in the divorce proceedings.  The husband had a new partner and a wedding date. The Court held that a case guardian may bring an application for divorce; however must be able to satisfy the Court that the applicant, whom the case guardian represents, had the requisite intention to bring the marriage to an end and that the marriage had irretrievably broken down.

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McKenzie and McKenzie 2013 FCCA 1013 is another case where an adult’s guardian brought an application after the adult, as a result of brain injury, lost capacity to communicate her wishes to her spouse. However she had, by actions and words, communicated this to her mother who later acted as her guardian.
In both these cases the adult expressed their intention to separate before losing capacity.

What if it’s an Involuntary Separation?

involuntary separation, separation, divorce, estate planning, willsParties may separate involuntarily due to their health and lose the capacity to form an intention in relation to the continuation of the marriage. A divorce order may not be an available option in this case.
Both spouses may then be bound by their marriage vows or by the action of one or the other through their guardian, who determines that the marriage is at an end.
Although separation is not strictly necessary for the court to make orders affecting “the property of the parties to the marriage”, an involuntary separation may trigger an action for alteration of property interests and claim for spousal maintenance.
In Stanford and Stanford [2012], an application for property settlement was bought by the children of the wife’s first marriage after the wife had lost capacity because of dementia and was living separately from her husband in high care facility. The husband and wife each had property in their own name and each had wills leaving their property to their respective children. The application for a property settlement order had been commenced when the wife was no longer competent and without the wife having expressed any wish to seek the division of marital property.

At the first hearing, orders were made for the transfer of property from the husband to the wife thus depleting his assets and increasing hers.
At the second hearing, the court ordered the transfer take place after the husband’s death as the wife had no immediate need for any further property, thus depleting the assets of the husband’s estate and increasing the assets of the wife’s estate.
By the time of the second hearing the wife had passed away. Her guardians, the beneficiaries of her estate, continued the case.

Ultimately the High Court overturned the decision to transfer property because the applicants had not shown that it was just and equitable to make the orders and that question should have been the starting point for the court hearing the application. The court said that in many cases the fact that the parties were no longer sharing their residence was an important factor in deciding whether to transfer property, or sell and divide proceeds.
The decision of the High Court in this case has had important implications for the conduct of Family Law matters.

Importantly the  High Court held that  the bare fact of involuntary separation is not sufficient to seek a transfer of property.  But there may be circumstances of involuntary separation of the parties which do indicate the breakdown of their marital relationship in which case a court may be satisfied that it is just and equitable to make a property settlement order. Circumstances where this might occur include where one party’s unmet needs  cannot be answered by a maintenance order  and a lump sum property transfer would be just and equitable. The majority also note that “It may be that there are circumstances other than need” warranting transfer of property.

In summary, a divorce order which requires evidence of intention to separate as well as separation, voluntary or not, affects the parties’ wills to the extent that any appointment or gift under the will to the former spouse is void.

Where the parties have separated, possibly for health reasons, property intended for distribution under a person’s will,  may be depleted or increased if a Court exercising Family Law jurisdiction concludes it would be just and equitable to transfer property from one spouse to another; and this in circumstances where one of the parties lacks capacity to end the marriage let alone conduct a case for property settlement.

Introducing Phillipa Kingswell, Accredited Specialist Family Law (Qld)

involuntary separation, separation, divorce, estate planning, willsWe’re excited to welcome Phillipa Kingswell to our Family Law practice.

Phillipa is an experienced solicitor and accredited as a family law specialist by the Queensland Law Society. She brings sixteen years experience in the law with her, and has been practicing in family law exclusively for ten years. In 2011, Phillipa earned the title of Accredited Specialist in Family Law (Qld).

Complementing her recognised technical skill and knowledge of the law affecting domestic relationships is her background in early childhood education and development. She brings her experience negotiating and documenting complex property transactions in the distribution of property between separating spouses to every settlement.

When not at work, Phillipa enjoys escaping to the country or relaxing in her vegetable garden.


For a free, 10-minute phone consultation with Phillipa, please contact us today!