Wed | Aug 12, 2020

Food for thought about getting older

Published:Friday | February 20, 2015 | 12:00 AM

As someone pointed out to me some years ago, if we all live long enough we will need someone to assist us ... . In fact, even before we get too old, we may no longer have the mental capacity to manage our own affairs and someone else will decide what we can and cannot do, and what becomes of our property. Sadly, those decisions may not reflect the choices we would have made for ourselves, and the Australian High Court dealth with one such situation in the case of Stanford vs Stanford [2012] HCA 52.

The important background to the case is that a man and a woman got married in 1971. It was a second marriage for both parties and each had children from the previous union. The couple lived together in the husband's house for 35 years. Each had a will. In his will, the husband left the wife a life interest in the house that was intended for his children after she died. In her will, the wife left her entire estate to her children.

The wife suffered a stroke and was moved into full-time residential care. She was later diagnosed with dementia. Throughout her illness, the wife received financial support from her husband to cover her medical and other expenses, and he continued to live in the house. However, one of her daughters was appointed as her case guardian, and this led to problems.


property settlement order


In her capacity as the wife's guardian, the daughter made a claim in court for a property settlement order to declare her mother's interest in the house, for it to be sold and for the net proceeds of sale to be shared between the husband and the wife in accordance with their respective interests in the property. The husband opposed the application on several grounds, including the fact that he and his wife had an "in tact" marriage at the time she became ill and their separation was an involuntary one. It was also argued that it was not "just and equitable" for the orders sought by the daughter to be made, since a maintenance order would suffice and it would not be fair for the husband to lose his home.

At first instance, there was a declaration that the wife had a 42.5 per cent interest in the house and the husband had a 47.5 per cent interest. He was ordered to pay $612,931 to his wife within 60 days of the order. The husband appealed to the Full Court, and after the arguments were heard, but before the decision was delivered, the wife died. The Full Court made two orders. The first order granted the husband's appeal on grounds that it was not just and equitable to make a property settlement order. In the second order, $612,931 was to be be paid to the wife's legal personal representatives upon the husband's death to reflect her contributions to the marriage and the husband's moral obligations.


High Court appeal


The husband appealed that decision to the High Court, and his appeal was unanimously allowed. Two of the things that struck me about the decision are:

1. A prenuptial agreement can serve a very useful purpose, especially where parties are entering a second marriage and have children from a previous union for whom they wish to make provision. If the husband in the Stanford case had an enforceable prenuptial agreement stipulating that property he held prior to the marriage would remain his property after marriage, his stepchildren would have also had the difficult task of overcoming that agreement in their attempt to dispossess him of his home.

2. I now have further insight into the reason the framers of the Jamaican Mental Health Act made provision for a wife and husband to be each other's nearest relative and the first in line to be appointed his or her legal guardian in the event of mental incapacity. In that way, other relatives will not have the opportunity to interfere in an "in tact" marriage in the way Stanford's stepchildren did, and substitute their wishes for those of a wife or husband who had never expressed a desire to divide marital property.

Of course, the husband in Stanford had done the right thing by making provision for his wife. It is likely that my views (and the outcome in Court) might have been different if her needs were not being met.

• Sherry-Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send comments and questions to or