Former spouses are included in the definition of eligible persons in the Succession Act 2006 – Section 57(1)(d).
The inclusion of former spouse as a category of eligible person enables the surviving partner of a dissolved or annulled marriage to claim against the estate of the deceased.
It avoids the situation where the deceased died after a divorce but before a property settlement under the Family Law Act although it is not confined to that circumstance.
The possibility the former spouse might come back for a “second bite of the cherry” after the death of the other party saw the enactment of two limitations upon the right of the former spouse to claim for further provision out of the deceased’s estate.
While a former spouse is eligible to make a claim this fact alone is not sufficient for him or her to be successful.
In relation to persons who are eligible only by reason of being former spouses, the Court must first determine whether in its opinion having regard to all of the circumstances of the case (whether past or present) there are factors which warrant the making of the application. This issue is determined on the whole of the available evidence. The whole of the evidence includes the making or otherwise of orders altering property interests in the Family Court of Australia.
The existence of a property settlement will usually preclude an applicant from successfully claiming further provision but is not conclusive.
An application may be entertained if there has been a material change in circumstances since the Family Court property order was made.
The only way to bar a claim is to prove a release of rights approved by the Court pursuant to Section 95 of the Succession Act 2006.
In determining an application for approval of a release of a person’s right to apply for a Family Provision Order, the Court takes into account all the circumstances of the case including
(a) it is or was at the time any agreement to make the release was made to the advantage financially or otherwise of the releasing party to make the release;
(b) it is or was at the time prudent for the releasing party to make the release;
(c) the provisions of any agreement to make a release are or were at that time fair and reasonable; and
(d) the releasing party has taken independent advice in relation to the release and if so has given due consideration to that advice.
In the 1986 case of O’Shaughnessy v Mantle, His Honour Justice Young provided a non-exhaustive list of circumstances which might give rise to a successful claim for provision by a former spouse:
- where there has been a divorce but the spouse has died before property matters have been resolved by the Family Court;
- the husband and wife have not settled all their property dealings at the time of the divorce;
- maintenance has been paid to the spouse at the date of death and the Orders for maintenance were inadequate to provide for the spouse after death of the paying spouse;
- cases where despite the divorce there was some dependency on the deceased as at the date of death for example some years after the divorce and property settlement, the spouse became grievously ill and the deceased provided financial support for medical treatment and/or living expenses.