Why Are Nan and Pop in Court?

by Peter Magee on October 17, 2016

Byron Leong

Most of us understand that Family Court proceedings in relation to financial matters happen when individuals who are married or in a de facto relationship separate and they cannot agree about how to divide what they have. This is why most of us are surprised, shocked or disappointed when we hear about Family Court proceedings in relation to financial matters for married couples who have NOT even separated. To the average person this surely is not right? I am sorry but it is.

The Family Law Act 1975 provides that Court proceedings for property settlement or spousal maintenance may be commenced even though the parties have not yet separated. Usually such applications are commenced in circumstances where both or one of the parties are elderly and may have lost their mental or physical capacity to look after themselves. Incapacity arising from age often creates a financial need for the incapacitated party such as ongoing medical costs or the significant costs of a nursing home. The typical circumstances for this type of Court proceeding is when one party to the marriage needs financial funds to be placed in a nursing home and the other party for whatever reason be it unwillingness, fear of being alone or even their own incapacity refuses to provide the financial support. Such cases are extremely complicated for the Court and family law practitioners, particularly in circumstances when the sole asset of the parties may only be limited to the family home. Therefore, meeting the financial needs of the party in need may inevitably result in the sale of the family home and then leave the other party homeless.

In addition to the practical problem associated with Court proceedings where married parties have not yet separated, is that often the proceedings were not commenced by one of the parties to the marriage but by an adult child of the parties allegedly for the benefit of his or her parent. If this happens then the motives of the adult child are questionable. Were the proceedings necessary or was the adult child trying to guarantee his or her inheritance?

Despite all the practical logic of the need for proceedings to be able to be commenced by a party to a marriage where the parties have not separated, I am troubled by the idea that any person at the twilight of their life may be involved in family court proceedings.

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