Which case won?

The case for the legal 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.
The case for the de facto wife
  • 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?

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Expert commentary on the court's decision

Elizabeth Hull
Elizabeth HullParalegal
“The court underlined the fact that the deceased did not leave sufficient assets and funds to accommodate the reasonable requirements of both women. This case is crucial in the domain of wills and estates. Although the de jure wife was not even mentioned in the will, she was apportioned a great quantity of the deceased’s legacy."
Court finds in favour in legal wife

In Byrne v Byrne [2000] NSWCA 168, the NSW Court of Appeal ultimately 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 this humble cottage.

Legal wife’s standard of living prior to death of husband

The Justices of Appeal supported the decision of the initial 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. 

It was 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.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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