Opinion
The legal wife, the de facto wife and the deceased estate – which case won?
10th Aug 2023
The facts
Marriage to legal wife produces four children
In 1938, a 24-year-old NSW man got married. His wife was 16 years old at the time. Soon after the wedding, the man was jailed for six months.
The couple had four children between 1938 and 1946. They did not have an easy life, moving around from place to place within NSW and sleeping in caravans, sheds and other rudimentary forms of accommodation. The husband worked as a travelling drover, handyman and farm hand. He was chronically neglectful of his responsibilities to provide financially for his family, often leaving them to pursue his love of horses.
The wife often did not know where he was and was forced to work outside the home to support her family as a sole parent. She testified in subsequent court proceedings that the children often went without shoes during these years and that she was forced to move in with her mother because of a lack of money.
De facto wife supplants legal wife
In 1949 the man left his wife and children altogether for another woman, who became his de facto wife. They went droving together in outback NSW, enduring difficult living conditions, but eventually managing to buy property together. When the man died, he and his de facto wife were living together on a 160-acre grazing property which they had jointly purchased in 1971.
The man and his de facto wife had five children who were born between 1954 and 1970. The couple remained together until the man died in 1998 at the age of 83. However, he never divorced his legal wife.
Relationship maintained with both wives
The legal wife led a life of extreme hardship after her husband left her for the de facto wife. She did not marry again and she did not form another relationship. On various occasions the legal wife tried to persuade her husband to return to her, but without success. At no time did she try to divorce him and she refused his requests to consent to a divorce.
During the legal proceedings over the man’s estate after his death, the NSW Court of Appeal remarked that he had ‘led a double life, keeping his dealings with each of the women partially concealed from the other’ (at [45]). He continued to have contact with the legal wife long after they had separated, expressing remorse for the way he had treated his first family and admitting that he had done the wrong thing by his legal wife and their four children.
Entire estate left to de facto wife
The deceased’s will assigned all of his property, worth $230,812, to the de facto wife. The legal wife took legal action under the Family Provision Act 1982 (NSW), arguing that her husband had made only minimal and inadequate provision for her during his lifetime.
The District Court agreed, determining that the legal wife had greater entitlement to the man’s estate than the de facto wife and allocating $125,000 of the estate to the legal wife.
The de facto wife appealed this decision, pointing out that the property where she lived would have to be sold to provide a legacy for the legal wife and arguing that the District Court had erred on several grounds.
It was up to the Court of Appeal to determine whether the first court decision had fairly and correctly divided an estate which was too small to provide adequately for two elderly wives who both had real and legitimate needs.
So, which case won?
Expert commentary on the Court's decision
Court finds in favour in legal wife
In Byrne v Byrne [2000] NSWCA 168, the NSW Court of Appeal unanimously dismissed the appeal brought by the de facto wife, Doreen Clementine Byrne.
The Court agreed with the District Court’s decision that the deceased, Kelvin Thomas Byrne, had made inadequate provision throughout his life for his legal (‘de jure’) wife, Mavis Eileen Byrne.
Need to balance needs of two elderly women
The presiding judges recognised the complicated situation before them, created by the co-existence of a legal marriage and a de facto marriage.
These proceedings were not just about determining a ‘winner’ and a ‘loser’.
The Court noted that each of the women unquestionably had real needs. These needs had to be balanced, taking into account the provision the deceased made for each of them in life and taking into account the other assets of each woman.
Husband’s lack of support for legal wife
The de facto wife, Doreen, attempted to prove that Kelvin, the deceased, had financed the current home of Mavis, the legal wife. However, the Court found this was not so. In fact, it was only as a result of the generosity of the father of Mavis’s brother-in-law that she was able to acquire the property.
What did come to light in Court was that Kelvin felt financially relieved from buying a home or providing rent payments for his old family after Mavis acquired a humble cottage.
Legal wife’s standard of living prior to death of husband
The Justices of Appeal supported the decision of the trial judge in finding that Mavis’s standard of living prior to Kelvin’s death was lower than what she was due. By shirking his personal and financial responsibilities to Mavis and her children, Kelvin was able to begin a new life for himself and Doreen. This included the joint purchase of various properties.
The Court found that Mavis essentially contributed to Kelvin’s acquisition of properties by saving him money in the raising of the children he had had with her. For this reason, the Court established that Mavis had a greater share of entitlement to Kelvin’s estate than Doreen. The Court of Appeal agreed that this amount should be quantified at $125,000.
De facto wife’s need to sell property
Doreen argued that Mavis’s claim should be dismissed because to allow it to proceed would involve the sale of Doreen’s property and her removal from it.
However, the Court pointed out that this was simply a consequence of the way in which Kelvin had arranged his affairs during his lifetime. The Court noted that if Doreen’s right to continue to live on her property were to be upheld, the result would be to deny any relief to Mavis, and this would be a harsh and inappropriate result.
The Court had the difficult task of meeting the reasonable needs of both women, as far as this was possible, out of a pool of assets which was insufficient to meet their requirements.
Financial and administrative responsibility
Everyone should be careful to update their will regularly. Certainly this should happen with every permanent relationship change or divorce, to avoid circumstances like the ones described in this case.
It is also worth bearing in mind that shirking your financial responsibilities during your lifetime and in your will does not mean that those you have neglected will simply evaporate after your death.
Kelvin’s neglect of his responsibilities towards Mavis and her children meant that after his death, Doreen was forced to concede the larger part of his estate to Mavis.
Further, by taking the ambitious step of appealing Mavis’s successful claim on Kelvin’s estate, Doreen not only failed to have Mavis’s claim dismissed – she was also ordered by the Court to pay Mavis’s legal costs, in addition to her own.
This is an edited version of an article first published by Stacks Law Firm.
The ALA thanks Elizabeth Hull for this contribution.
Elizabeth Hull is a paralegal in the Tamworth office of Stacks Law Firm, where she is works in the area of legal wills, probate and estate administration. Liz has a Diploma in Secretarial Studies, as well being a Justice of the Peace and a Commissioner for Declarations
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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