Insights and Inspiration
Death and other discomforts
13 February 2018
A fairly high percentage of relationships end because they break down. 100% of all relationships will end, either by breakdown of the relationship or by death. Two recent cases decided by the Family Court deal with the death of one of the parties. While they are quite different, each case does show a judge trying to achieve fair outcomes.
In Neubert (deceased) & Neubert the marriage of the husband and the wife broke down after 18 years. She started proceedings for property settlement. Her husband then murdered her. At the same time, he shot a friend of hers, who was seriously injured. In this and the next case, it is important to know that so long as an application has been filed with the court, the death of either spouse will not stop the case. The case can be continued by or against the estate of the spouse who died. That is what happened in the Neubert case.
In the meantime, however, the badly injured friend sued the husband and got a damages award of $2.3million. The husband was convicted of murder and sentenced to 25 years gaol. At that time he was 75. The friend with the damages award joined in the Family Court proceedings against the husband. What she was telling the judge was that whatever the husband got, she wanted, in order to satisfy the judgment debt that he owed her for her terrible injuries.
In any property settlement case the court has to look at three things: who contributed what towards getting the property that the parties have (contributions), what the future needs of both parties are, and what order would be fair.
In this case the judge looked at the contributions and adjusted them 35% to the late wife's estate and 65% to the husband.
Ordinarily, if the Family Court looks at a case where one of the parties has died, it is quite difficult for the party who has died to claim that they have any future needs. Ordinarily therefore there would an adjustment made in favour of the surviving party because that party still does have future needs.
In the Neubert case the judge said that it would be "offensive to justice …" if the murderous husband got the benefit of having future needs when it was he who murdered his late wife. That obviously seems to be just. But the judge could have approached in another way. What future needs does a 75 year old man have who is going to be in gaol for the rest of his life?
And then there was the friend. What award the judge did give to the husband he then ordered be paid to her. I don’t think anybody could quarrel with the fairness of that.
The next case, Whooten & Frost (deceased) also showed a judge reaching a fair outcome while perhaps stretching the rules a little. After 12 years of marriage the couple separated in June 2015 and there followed over a year of correspondence about property settlement, negotiations, but no resolution and no court application.
In late 2016 the husband, had a serious accident on his farm. He was placed on life support.
You will remember from the previous case that if the wife had filed her court application before the death of her husband, then she could continue the case after his death and against his estate. She did so by electronic filing at 7.40pm and at about 11.pm the same night the family turned off the life support system and the husband died.
However the court rules require that if a court document is filed electronically after 4.30pm, it is taken to be filed on the next day. By then of course the husband would have been dead and her application could not have proceeded. On the face of it, while the court records showed that the application had been filed before the husband's death, under the Rules it would not have been and so she would have had no right to a property settlement.
The wife's lawyers asked for permission for the court to extend time under the Rules, which the court can do in certain circumstances. Ordinarily the court would look at the merits of the case and the reasons for the delay but the general approach is that Rules that fix time for doing things don't become instruments of injustice.
The court here saw the working of the Rule as doing just that, namely creating an injustice, and extended the time so that the wife's application could proceed.
Which goes to show that while you can't take it with you, you can have it taken away after you die.
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