Mcgregor

As we become more accustomed to the use of the Property (Rights of Spouses) Act, it is hoped that a body of jurisprudence will develop to enable us to fully understand how the act is intended to operate. In that way, many myths and misconceptions may be put to rest.

We are grateful to those judges who continue to record judgements to assist in this process. One such judgement may be of particular interest to persons who live together while one party is still married, because it gives rise to the question as to whether those couples are able to rely on the act.

The case of M vs N began just six weeks after the act came into existence. M and N had been living together as if they were husband and wife for more than 20 years. According to M, after N won the $119 million lottery in 2006, he won the heart of a young woman and the long-standing relationship with M fell apart.

No reasonable cause

M applied to the Supreme Court under the act claiming 50 per cent of N's property, including the lottery prize money. N opposed the claim and applied to strike it out on the basis that M was not his "spouse", as defined by the act, so she had no reasonable cause for bringing the claim.

Although M and N had been living together for more than 20 years, N was not a single man. N was married in 1972 and separated from his wife, but was never divorced. So M and N had been living together as if they were in law, husband and wife, one very important requirement to prove that M was a common-law spouse had not been satisfied - N was not a 'single man'.

The act clearly defines 'spouse' to include a single man or single woman who has cohabited with a single woman or single man as if they were, in law, husband and wife for a period of not less than five years. Whereas widows, widowers and divorcees are considered to be single, the same is not true for persons who are married but separated.

M's claim was struck out and the judge made it clear that his ruling was based on the true meaning of the words used in the statute. He pointed out that any perceived injustice which may befall M must be a matter for Parliament to address and not the courts. If it was intended to include a man or woman who is separated from his or her wife or husband in the definition of 'spouse' in the act, this would have been done.

I suppose the moral of the story is that, if a marriage is at an end, then it should be lawfully determined. Otherwise, there may be seemingly unjust results for one party in the new relationship, in the event of separation or the death of the other party, while he or she is still married.