By Gianna Huesch
Because “you can’t take it with you”?
Another case involving a person suffering from cancer has just been heard in the family law courts, and is likely to be as controversial as the case we have mentioned involving young Oshin.
The Australian newspaper reports on “what is believed to be the first case of its type” with a decision handed down by the Federal Circuit Court in which an ex-husband with aggressive lung cancer has been granted significantly less in a property settlement than his healthy wife.
In the case, the husband, aged 56, and wife, aged 60, had been living together for over 30 years and had separated in 2014. Their children are aged 17 and 20. Their marital asset pool had been valued at around $1.5million, of which the husband was granted just 33%, or $500,000.
The division of the couple’s assets had taken the husband’s health into account as “a significant issue”, with the wife successfully arguing that her former husband’s limited life expectancy meant her long-term financial needs exceeded his.
In delivering his judgment, Judge Brewster is quoted as saying:
“Is this just and equitable? The heart says ‘no’. The head says ‘yes’. With great reluctance I feel I must be guided by my head…It goes without saying that it is quite distasteful to contemplate reducing a party’s entitlement to a share of property because he suffers from a terminal illness. However, the matter has to be approached in a dispassionate way.”
Despite the husband presenting to the court “a somewhat upbeat picture of his condition”, the judge opted to “rely solely on the medical evidence” which it is reported included a letter to the court from the man’s doctor that said: “Mr Morcomb has advanced lung cancer which has progressed … Most cancer specialists would quote a median survival of around 12 months.”
Depending on the outcome of any appeal—and given the advanced ill-health of the husband, it is unknown whether he will pursue an appeal—this case could have ramifications for how other litigants decide to run their property settlement cases.
Do you need advice in relation to a property settlement or other family law matter? Please contact Cristina Huesch or one of our solicitors here at Alliance Family Law on (02) 6223 2400 for a free, no-obligation initial conference.