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 court remarked that he had led a double life, keeping his dealings with each of the women partially concealed from the other.

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, 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 in the Court of Appeal of the Supreme Court of NSW, 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.

CASE A

The case for the legal wife

CASE B

The case for the de facto wife
  • I am the legal wife of the deceased. We never officially divorced and I am entitled to the share of the estate that the District Court awarded to me.
  • The deceased left me with four children to raise on my own. I endured a long, hard struggle from then on, often surviving only on the charity of my sister and my parents.
  • The maintenance payments which the deceased made to me were minimal, unreliable and inadequate.
  • Because of the extreme poverty my family experienced after we were abandoned by my husband, my children all had to leave school at the age of 15 or 16 to start working. The de facto wife's children had the opportunity to get a better education than mine.
  • The fact that I supported myself and my children without assistance from my husband freed him to buy property with his de facto wife. Their consequent enrichment and the relatively comfortable financial position she now enjoys are a result of my family's utterly unjust deprivation.
  • It's true that the de facto wife spent more years living with my husband than I did. But it was hardly my doing that I had no opportunity to continue to be his wife or to care for him.
  • My financial needs are greater than the needs of the de facto wife. I have had cancer removed from my leg and I need ongoing medical treatment.
  • My cottage in South Australia requires $55,000 in repairs and renovations.
  • My only form of income is the $180 weekly pension.
  • The court should dismiss the de facto wife's appeal and confirm that I am to be awarded $125,000 of the estate, as determined by the District Court.
  • While there is another woman who insists she was the legal wife of the deceased, in fact I am the one who was his true wife of 49 years, compared to the 11 years she spent with him. I nursed the deceased when he was sick and brought up our five children.
  • The legal wife was adequately provided for during my husband's lifetime. She only brought the claim due to hurt feelings that her partner took up with another woman.
  • The trial judge kept referring to the deceased "abandoning" the legal wife, showing he took a judgmental or moral view which influenced the way he adjusted the estate.
  • The deceased and I worked long and hard together droving through NSW and endured difficult living conditions. I worked hard over the years to help us generate an income and acquire properties.
  • My financial needs also need to be met. I am in poor health, with high cholesterol and periodic dizziness and am also suffering from neck and back pain.
  • My private home is in serious need of restumping. I need to come up with the funds, which has been increasingly difficult since the deceased passed away. The property needs constant maintenance and I need almost $2000 per year for the rates, as well as money for the public liability insurance on the property.
  • My only form of income is the $180 weekly pension.
  • The legal wife is not mentioned in the will and for this reason is entitled to nothing. Her claim on the estate of the deceased was misconceived and should never have been brought. The Court of Appeal should overturn the orders of the District Court.

So, which case won?

Cast your judgment below to find out

Elizabeth Newton
Will disputes
Stacks Law Firm

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