Who's Fault?

From the date the Family Law Act began in 1976, fault as a ground for divorce disappeared. For a while, it was thought that its disappearance was total; the conduct of a party in the marriage would have no relevance to any of the outcomes, be they related to property settlement or parenting and not just the ground for divorce. Nonetheless, fault as a factor in people's emotions and behaviours and beliefs has had a long history, and a very slow death.

In one respect, that of family violence, conduct of that description can now affect financial outcomes of property settlement proceedings, as well as parenting cases.

Until recently, it has also had a life in another form. Even though you and your spouse may have ended your relationship, your former spouse could still make a family provision claim in the Supreme Court under the Succession Act, unless you both had entered into a Deed of Release under the Succession Act and had that Deed approved by the court.

In previous cases, the Supreme Court has regarded conduct or fault, or blame for the breakdown of the relationship, as a relevant factor in whether the claimant for family provision would succeed.

In a recent case (in the Estate of the late Anthony Marras [2014] NSWSC 915), the Chief Judge of the Equity Division of the Supreme Court has said that it is not appropriate to do so, and that the court's focus should not be on the cause of the breakdown. The deceased person does not have the opportunity to give any evidence about the grounds of the breakdown of the relationship and it is completely unfair to allow such considerations.

Though we agree with the idea, it is nonetheless curious. In any family provision claim, the living claimant gives evidence about what he or she did for the deceased, and the nature of the relationship between him or her and the deceased, in circumstances where the deceased does not have the right of reply for obvious reasons. Perhaps it is more a recognition that, for very good reasons, it is difficult to pin down blame or fault for relationship breakdown.