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It is widely acknowledged that the average age of our population is increasing, while divorce is also on the rise. The good news is that many people who have previously been through a divorce or separation often go on to have second or third marriages or de facto relationships. However, as a couple grow older there can be a failure of the mind and body, which means that one or both might require supported care accommodation.

It is often in these situations that family law practitioners are seeing the rise of applications for a divorce or property settlement where one party asserts that they are separated, while the other party believes the relationship is still intact, despite their physical separation.

The High Court case of Stanford v Stanford showed us that physical separation, when involuntary, does not mean it is ‘just and equitable’ for the Court to adjust property between spouses who have otherwise not expressed any intention to emotionally or financially separate. In that case, the High Court, on appeal, declined to adjust the property entitlements of the parties on the basis that it was not just and equitable to do so.

Predatory separations

Most people are familiar with the idea of “predatory marriages” where a wealthy person is groomed for a marriage and/or de facto relationship by a less wealthy person. Concerningly, lawyers are beginning to see more cases of “predatory separations”. This essentially refers to a frail and elderly person being influenced by their adult child from a previous relationship who believes that their parent ought to separate or already has separated from their current spouse.

There have already been cases where the adult child heir(s) of a wealthy spouse have been appointed case guardian on behalf of their parent and successfully had the marriage annulled, with the Court finding their parent lacked the requisite capacity to understand the nature and effect of the marriage. There is also a rise in applications by adult child heirs claiming that their parent has lost capacity, is separated and requires a divorce and/or property settlement.

The application might be made by the spouse themselves but when pressed by their solicitor, they are unable to make decisions without first checking with their adult child, or the adult child speaks on their behalf, overwhelming their parent. This often arouses the suspicion of the lawyer who then has to decide whether the applicant spouse has the requisite capacity and intention to separate, or if they are being coerced into doing so by their child.

An unsuspecting spouse, despite their physical separation due to infirmary or incapacity, might have had no idea their relationship had ended until they are served with the Court application.

It’s a concerning thought that an adult child acting as a case guardian would seek a separation on behalf of their parent solely to secure property entitlements and boost their inheritance.

It all comes down to capacity

Determining whether a person has the legal capacity to decide to marry, live together or separate is not straight forward. Legal capacity can come and go and is specific to the decision or task at hand at the time. A person may lack capacity to make a decision one day due the effects of medication or stress but regain capacity the next day. A person may have capacity to make decisions about a daily task but may not have capacity for more complex decisions, such as whether to marry or whether to end a relationship.

Lawyers are alert to the rise of elder abuse in society. Assessing a person’s legal capacity to separate from their partner and whether it is just and equitable to seek a family law property settlement is a complex matter. It requires consultation with an experienced family lawyer who can identify and arrange for appropriate assessment, prior to any proceedings being issued.

If you or someone you know are being influenced to seek a property settlement and have doubts, you should arrange a time to speak to your lawyer in confidence about your concerns.