Divorce without capacity

Saturday, 01 March 2014
Christine Smyth discusses the factors a third party must establish in order to succeed in a divorce application for an incapacitated adult in Australia.

The late Princess Diana was famously quoted as saying ‘there were three of us in this marriage’.1  It was, of course, a reference to her husband’s alleged infidelity. However, these days, with marital breakdown and loss of capacity coinciding, the ending of a marriage can require the involvement of a third party without there being infidelity. Clients in the midst of a matrimonial meltdown often overlook the consequences that divorce, or rather the lack thereof, can have on the succession rights of the parties to the marriage. This oversight can have a significant impact where the client loses capacity to bring the divorce application themselves.

While in all Australian jurisdictions wills are revoked or varied by statute on divorce,2  these changes to the will do not take effect on mere separation of a married couple. The recent decision of McKenzie (by her litigation guardian Ms D) v McKenzie  demonstrates the increasing incidence with which loss of capacity and divorce are intersecting.3  It is an issue estate-planning lawyers must consider, if they are to properly advise their clients.

Divorce and dementia

The Australian Bureau of Statistics (ABS) estimates the probability that a marriage will end in divorce is approximately 33 per cent.4  Of those who divorced in 2000–2002, approximately 56 per cent of men and 46 per cent of women will remarry,5  creating a significant proportion of the population who have ‘blended families’ and divided loyalties.

There are over 321,600 Australians living with dementia, a number that is projected to rise to 900,000 by 2050.6  These statistics demonstrate that there is a plethora of issues to consider in advising clients about their estate-planning needs.

Clients with cognitive impairment can pose issues for both family and estate-planning lawyers,7  as the marital status of the client significantly effects their estate plan; the rights of the parties to bring a family provision application upon death; rights in respect of superannuation entitlements; and the necessity for a statutory will.

Third-party divorce applications

In Australia, the only basis for a divorce is that the applicant must satisfy the Family Court that ‘the marriage has broken down irretrievably’,8  established through the applicant demonstrating that the couple have ‘lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order’9  and that ‘there is no reasonable likelihood of cohabitation being resumed’.10

Where a party to a marriage has lost capacity, they are no longer capable of forming the intention to separate, remain separated, or initiate the application. So the question arises: can a third party seek a divorce on behalf of the incapacitated person?

Price v Underwood (Divorce Appeal) is the leading decision on this question.11  In that case, an adult daughter brought an application for divorce on behalf of her incapacitated father, who was terminally ill. She led evidence that, before he lost capacity, her father wanted to die divorced from his second wife (her stepmother). The court accepted this evidence. In so doing, it confirmed that a divorce application can be made by a third party on behalf of an incapacitated adult. The consequence of granting the divorce was that the father died intestate, with a significant consequential impact upon the succession rights of the related parties.

In Price, the success of the divorce application hinged on whether the incapacitated husband ‘had the requisite intention to bring the marriage to an end’.12  On the facts, there was no doubt that it was communicated by him, prior to his loss of capacity, that the marriage was at an end and that he wished to be divorced. More often, however, the facts and evidence will not be so clear.

The decision of McKenzie provides guidance as to the evidence required to be successful in an application where the intention of the incapacitated spouse is not manifest and unequivocal.

In McKenzie, the wife was 45 years old and had suffered a mild stroke. She separated from her husband on 1 May 2011 and, about six months later, sought the assistance of her mother in preparing an application for divorce. There was some evidence that the wife had communicated to a Mr W that she intended to file an application for divorce. From the time of separation, there was no contact with the husband. Without having filed her application, the wife underwent surgery on 15 March 2012, during which she suffered a hypoxic brain injury and lost capacity.

Subsequently, the wife’s mother was appointed her litigation guardian, and, on 1 November 2012, brought an application for her incapacitated daughter’s divorce. The issue before the court was: as Ms McKenzie had not been separated from her husband for 12 months, what was her ability to understand the nature and effect of a divorce?

The court accepted the medical evidence that: ‘…while Ms McKenzie consistently communicated a desire to seek a divorce… she could not demonstrate adequate understanding of the nature and effect of the divorce processes or proceedings.’13

The court found that ‘the wife was no longer able to manifest, through her cognitive ability, a desire to separate’, in which case the success of the application hinged on the length of time between her intended separation and her loss of capacity. Crucial to a divorce application is the requirement to be separated for a period of 12 months,9  without there being a ‘reasonable likelihood of cohabitation being resumed.10  Here the length of time from separation to loss of capacity was nine months. So the next question for the court was whether the marriage had irretrievably broken down.

In finding that the marriage had done so, the court was satisfied that: ‘…the nine months that the wife lived separately and apart when she had the cognitive capacity to understand her actions, satisfies the requirement that the marriage has broken down irretrievably.’14

The court distinguished the facts of this matter from those of In the marriage of D and D,15  where, during the relevant periods of separation, the husband did not have capacity to form the intention to separate and his application was opposed.

But what of the client who does not initiate the separation and then loses capacity? In those circumstances, it will be a matter of evidence. Highly relevant will be the client’s intention during the period of separation and loss of capacity.16  Evidence of the client’s communications with other parties as to the separation that is intended to end the marriage will be crucial. The following matters will also be relevant:

  • institution of property proceedings and the purpose in bringing them – that is, whether they were brought for some reason other than to end the marriage;
  • the level and purpose of contact between the parties;
  • domestic violence orders; and
  • evidence of the other party’s intention when separating and in maintaining the separation.17

As for the client who at the time of separation does not have capacity, a successful divorce application will be extremely difficult, particularly where it is opposed.


As strange as it might seem to have a third person bring about the divorce of a married couple, the succession requirements of the incapacitated adult may necessitate it. It is, however, not a simple task and the case law demonstrates that at all times the relevant viewpoint is that of the incapacitated adult, not that of the third-party intervener, with evidence of the intention of the incapacitated adult being crucial to the success of that application. 

  • 1Interview with Martin Bashir, Panorama, BBC One, November 1995, available at www.bbc.co.uk
  • 2Succession Act 1981 (Qld), s15; Succession Act 2006 (NSW), s13; Wills Act 1968 (ACT), s20A; Wills Act 1936 (SA), s20A; Wills Act 2008 (Tas), s17; Wills Act 1997 (Vic), s14; Wills Act 1970 (WA), s14.A
  • 3 [2013] FCCA 1013; BC201311936
  • 4Australian Bureau of Statistics, ‘Lifetime marriage and divorce trends’, Australian Social Trends, 4102.0 (2007), last updated 23 July 2008, available at www.abs.gov.au
  • 5Compared with widowers, whose remarriage rate will be around 8 per cent, and widows, at around 3 per cent
  • 6Alzheimer’s Australia ‘Summary of dementia statistics in Australia’, available at www.fightdementia.org.au
  • 7For an explanation of the various categories of disability, see ‘Types of disability’, Queensland Government, available at www.qld.gov.au (follow the link to ‘Disability statistics’, where it is stated that over four million people in Australia have a disability)
  • 8Family Law Act 1975 (Cth) (FLA 1975), s48(1)
  • 9 a b FLA 1975, s48(2)
  • 10 a b FLA 1975, s48(3)
  • 11(2009) 231 FLR 308; (2009) 41 Fam LR 614; (2009) FLC 93-408; [2009] FamCAFC 127
  • 12At [145]
  • 13 At [22]
  • 14At [24]
  • 15 In the marriage of D and D (2001) 27 Fam LR 736; [2001] FMCAfam 46
  • 16See Cassidy J’s comments in McKenzie at [23]
  • 17For example, see Stanford v Stanford (2012) 47 Fam LR 105; (2012) FLC 93-495; [2012] FamCAFC 1; BC201250009
Author block
Christine Smyth

Christine Smyth TEP is a Partner at Robbins Watson Solicitors.

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