Tuesday, February 22, 2022

Divorce** and enduring powers of attorney

Previous posts have considered probably the most high profile case involving a divorce using an enduring power of attorney, that being the decision in Stanford.

The case of McKenzie & McKenzie [2013] FCCA 1013 provides another similar example.

A summary of the facts is as follows:
  1. The wife separated from the husband, and around six months later, there was evidence to suggest that she began preparing documentation to apply for a divorce;
  2. Around nine months after the initial separation, the wife underwent surgery that ultimately resulted in her losing capacity;
  3. Following the loss of capacity, the wife's mother was appointed her legal guardian;
  4. Via her role as legal guardian, the wife's mother formally finalised an application for divorce;
  5. The court allowed the divorce proceedings to proceed on the application of the mother on the basis that the relationship between her daughter and former son-in-law had broken down irretrievably before the loss of capacity; and
  6. The fact that the daughter had not been separated from the husband for 12 months (which is normally required) before she lost capacity was not held to be relevant in the circumstances.
A similar conclusion was reached in the case of Price v Underwood (2009) FLC 93-408 where an urgent application by an attorney for a divorce to be granted (as it evolved, one day for the principal died), waiving the normal waiting period.

Mentioning cases such as Re an Incapable Person D [1983] 2 NSWLR 590, Pavey and Pavey (1976) FLC 90-051, Todd and Todd (No. 2) (1976) FLC 90-008 and Falk and Falk (1977) FLC 90-247, it was confirmed:
  1. an enduring attorney can make an application for divorce on behalf of a principal;
  2. any such application must be supported by evidence that the marriage has irretrievably broken down;
  3. the attorney also needs to be able to show that the principal had the requisite intention to bring the marriage to an end and had lived separately and apart from the spouse for 12 months prior to the filing of the application.
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** for the trainspotters, the title today is riffed from the Nirvana song ‘Serve the servants’.

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