Family law clients may be asked by their lawyer about their health and the status of the health of their former partner. Some clients are perplexed by this and don’t immediately understand the relevance. Health certainly can play a role in relation to parenting matters and whether a parent is physically, emotionally or psychologically up to the task of parenting children or whether they suffer from addictions which renders them incapable of meeting the needs of their children.
Health or more specifically a family law client’s life expectancy can also be relevant to financial aspects of a separation – whether it is because of their greater financial needs due to ill health and therefore necessitating consideration of maintenance due to their financial dependency – or whether it is because their life expectancy is such that they will not have future needs.
Regardless of the impact on the family law matter, the health of parties or more importantly parties to a separation who are parents can impact a separating family even more than the impacts of relationship breakdown. There is an entirely different layer of mourning and grief which has to be managed when a family faces both a separation and the possible or likely death of their partner or ex-partner.
We have worked with families whereby one parent stayed, not out of love but for the sake of the children, whilst the other parent received medical treatment. This client may also choose to consult their family lawyer and be faced with the tough decision about separating – if not physically – then legally – in order to counter the impact of a deceased estate on the family’s assets. The person dying may have sole control over certain assets, may have been aware of the nature of their relationship and may have opted to make a Will limiting or eliminating the other partner’s entitlements to inherit on death.
We saw how maintenance claims play out prior to the death of a party in the High Court decision of Stanford v Stanford  HCA 52. Whilst the parties were not separated, the claim was made on behalf of the wife by her daughter of a previous marriage prior to both the wife’s death and the subsequent death of the husband. The claim was couched as a maintenance claim (to which the Court found that the wife was entitled) as the Family Law Act creates mutual obligations of financial support whilst a marriage still subsists and is usually sought as a remedy post separation. Maintenance can be paid in periodic or lump sums and a claim can be satisfied by say, the transfer of an asset or assets.
The reason why such a drastic action was taken in Stanford’s case was due to the then standing of parties who could challenge deceased estates in Western Australia. The claim pursuant to the Family Law Act was designed to keep the wife’s legal rights alive after her death so that the assets were not wholly subsumed into the husband’s estate and for him to then leave those assets solely to his adult children (also from a previous marriage) and thus effectively exclude the wife’s children. The law in Western Australia has since been amended to permit step children to challenge the Wills of step parents. Nonetheless, where one partner’s health is in decline during a separation (or when separation is being considered), it is important that the issue of dividing assets is considered not only from a Wills and Estate and perspective, but also a Family Law perspective.
The questions to consider then for the surviving partner and the dying partner, similar as that which you would consider in all family law matters, are somewhat more nuanced. In particular, the dying partner might consider:
- What happens to my maintenance entitlement if I were to die? What are the future needs and the standard of living of the surviving partner?
- What is the income earning capacity of the surviving partner?
- What impact will family law proceedings have on my estate and that which is available for division pursuant to my Will?
- Are there children under the age of 18 for whom the surviving partner will need to care?
- When was the last time I updated my Will?
The other partner should also consider:
- Is it possible that my partner may exclude me from their Will?
- How are assets being held currently and how can I ensure I can secure a share if I am excluded from their Will?
- How will I maintain myself, and if applicable, how will I maintain my children?
Family law and Wills and Estate law will intersect in ways most clients cannot imagine, and often it is the children whose financial futures are adversely impacted unless legal rights are exercised and proceedings commenced to preserve those rights pursuant to the Family Law Act. Caroline Counsel Family Lawyers can help you navigate these issues and advise you in relation to the many questions that arise in this space.
Caroline Counsel Nguyet Cao
Accredited Family Law Specialist
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers. The contents of this blog are relevant as at 10 February 2023. We recommend you obtain specific advice relevant to you and your family’s situation.