Wong on Family Law

Select topics on Family Law in Australia -- Family Provision

Work-in-progress, 3 August 2025 (last updated). Do not Cite.

[A] Section 79AA(8) - former s 79(8) Family Law Act - Property Settlement Orders - Death of Partner - Moral Obligation - Moral Entitlement: 

• SEE, Family Law Act 1975 (Cth) s 64B(2). 

• "Even after the death of a party to the marriage, an interim order, under s 80(1)(h), is permissible, so long as the requirements of s 79(8) are satisfied. Section 79(8) empowers the Family Court to give effect to the moral claims in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided ‘it is still appropriate to make an order with respect to property’: section 79(8)(b)(ii).[7] [7] In the Marriage of Fisher [1986] HCA 61; (1986) 161 CLR 438, 457-458.": Anastasia Zasentseva, 'Navigating interim Property Orders in Family Law' (Foulsham & Geddes, Webpage) <https://www.fglaw.com.au/interim-property-orders-in-family-law/>. 

• Killed by partner prior to final property settlement: "... [82]  When s 79(8) of the Act was first introduced in 1983 there was a questions as to its constitutional validity. That question was resolved by the High Court in Fisher v Fisher (No 2) [1986] HCA 61; (1986) 161 CLR 438; (1986) FLC 91-767. In that decision Brennan J stated at 457–458:— Section 79(8) does not confer jurisdiction on the Family Court to entertain proceedings commenced after the death of one of the parties to the marriage. The proceedings to which it relates are proceedings commenced between the parties to a marriage with respect to the property of those parties or either of them arising out of the marital relationship or otherwise falling within par (ca) of the definition of “matrimonial cause” in s 4(1) of the Act. The proceedings must have been a matrimonial cause commenced pursuant to s 79(1). The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims made in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property” (s 79(8)(b)(ii)). That qualification on the power, coupled with par (ca)(i) of the definition of “matrimonial cause”, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied. (emphasis added). Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party’s property or by any other devolution of that property on that party’s death. That is a law which governs an incident of marriage in that it provides the machinery for enforcing the moral obligations with respect to property arising from a spouse’s marital relationship. It is a law with respect to marriage. [83]  The question of a ‘moral obligation’ arising out of marriage as discussed by Dean J over thirty years ago was perhaps language of another time or referable to the reasoning of Gummow and Hayne JJ in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; (2005) 213 ALR 692; (2005) 79 ALJR 731 where they said at paragraph 69:— 69. Thereafter, in their joint judgment in Singer,14 Mason CJ, Deane and McHugh JJ, after referring to the statement by Salmond J in Allen and to the comments of Murphy J in Goodman and Hughes, said  For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to ‘moral duty’ or ‘moral obligation ‘ may well be understood as amounting to a gloss on the statutory language. 70.It is apparent that their Honours were not using the term “gloss” in its milder sense of a comment or explanation. Rather, they were using it in the same sense as Williams J had done in Coates,15 that is to say, of a paraphrase which is apt to mislead. [84]  Rights created under the Act are sometimes said to be a ‘moral obligation’ or a ‘moral duty’. However, these rights are entitlements arising under the Act. The task of a court is to understand and analyse such legal entitlements when applied to the facts of an intimate partnership through marriage and/or de facto relationship. It is not some moral claim or moral obligation, but recognition of the joint contributions and circumstances of a same sex or heterosexual couple who live as a family, albeit at times optimistically. [85]  I am comforted in this thinking and approach by the comments of the High Court in Stanford v Stanford [2012] HCA 52 where French CJ, Hayne, Kiefel and Bell JJ said:— 52.Whether it was just and equitable to make a property settlement order in this case was not answered by pointing to moral obligations. Reference to “moral” claims or obligations is at the very least apt to mislead. First, such references appear to invite circular reasoning. On its face, the invocation of moral claims or obligations assumes rather than demonstrates the existence of a legal right to a property settlement order and further assumes that the extent of that claim or obligation can and should be measured by reference to the several matters identified in s 79(4). Second, the term “moral” might be used to refer to a claim or obligation that is based on the kind of contribution described in s 79(4)(b) — “the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them”. But nothing is gained by describing such a contribution as founding a “moral” claim or obligation. Moreover, if the word “moral” was being used in this context with some wider meaning or application, it is important to recognise that it is used in a way that finds no legal foundation in the Act or elsewhere. It is, therefore, a term that may, and in this case did, mislead. The rights of the parties were to be determined according to law, not by reference to other, non-legal considerations. The references by Brennan J in Fisher v Fisher[38] to moral claims should not be misunderstood as suggesting otherwise. [86]  The Full Court touched upon this in Mena & Mena [2016] FamCAFC 85 where Bryant CJ, Strickland and Watts J said:— 88.If what her Honour was referring to at [25] and [73] was a moral obligation on the part of the husband, then his case was not presented in that way. But even if her Honour had in mind some moral obligation, that was a matter between the husband and his mother and should not result in any further adjustment between the husband and the wife, her Honour having already adjusted between them by the generous assessment of the husband’s initial contribution. In other words, an adjustment had been made as between the husband and the wife and any potential adjustment between the husband and his mother, arising from a moral obligation , should not have played any further part in the calculation of the division of the assets of the parties once the adjustment for the husband’s initial contribution had been made. This is the “double counting” submission (described at [51] above) made by the wife and we accept that submission. The wife has, in effect, paid twice, and been unfairly disadvantaged. We accordingly find merit in Grounds 2 and 3. (emphasis added)    [87]  There being in effect no moral obligation, it is now for the Court to determine if these proceedings should continue. ...": Neubert (Deceased) & Neubert and Anor (No 2) [2017] FamCA 829.

• "It is clear, in my opinion, that the effect of s 79(8) is to reverse the result that would otherwise have followed from the death of the husband, viz that his property application would have abated. It provides machinery for the discharge of moral claims made in respect of property of spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property”. Where those moral obligations remain unsatisfied, it provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party's property or by any other devolution of that property on that party's death. ... If the application were dismissed then the benefit which I have already recognised as accruing to the husband and sub-para (b)(i) would be negated by considerations under sub-para (ii). The “moral claims” of the husband and his estate arising from a consideration of s 79(4) and s 75(2) would not be discharged in priority to the testamentary dispositions or devolution of property on his death but rather would be submerged by, and subsumed to, those considerations. That cannot in my opinion have been the intention of the legislature because its effect would be to give the estate a benefit on the one hand under s 79(8)(b)(i) and, on the other hand, to take that benefit away under s 79(8)(b)(ii).": In the Marriage of R T and A E North (1987) 11 Fam LR 735, 745, 750. 

• "[46]  The implications of section 79(8) have been discussed, by the High Court, in a number of cases, including Stanford. Essentially, it is said the provision is designed to satisfy the moral obligations arising from a marriage, which the death of a spouse may have otherwise defeated. In Fisher v Fisher15 Brennan J said: The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property”: s 79(8)(b)(ii). That qualification on the power, coupled with par. (ca)(i) of the definition of “matrimonial cause”, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied. Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party’s property or by any other devolution of that property on that party’s death. Gibbs CJ (with whom Wilson J agreed) said: It is true that s 79(8) provides for the creation of new proprietary rights after a marriage has been terminated by death. However, those rights may be created only if proceedings with respect to the property of the parties to the marriage or either of them had been commenced while the marriage was subsisting and only if the proceedings are continued by or against the legal personal representative of the deceased spouse; further we are concerned only with the case in which the proceedings arose out of the marital relationship. An order may be made under the subsection only if the Family Court is of the opinion that it would have made an order with respect to property if the deceased party had not died and that it is still appropriate to make an order with respect to property. We are not concerned to consider in what circumstances it would be appropriate to make an order that would benefit complete strangers, but clearly the discretionary power to make an order under s 79(8)(b) should not be exercised lightly.16 [47]  What is clear from the obiter remarks of Gibbs CJ, Brennan and Wilson JJ is that the court is not to exercise its discretion to make a disposition, effectively in favour of a party who was not a party to the relevant marriage, lightly. In essence, careful consideration must be given to the overall appropriateness of such an intervention. ... [50]  Although the High Court indicated that it was not possible to provide any clear definition of what was a just and equitable exercise of the discretion arising under section 79. In an earlier decision, Mallett v Mallett,18 such a discretion was described as being very wide, it remains a discretion to be exercised judicially and in accordance with fixed rules. In this context, the High Court provided three stipulations, which I will attempt to summarise as follows: •Firstly, what is just and equitable must commence with an identification of what are the ordinary common law and equitable principles [and] the existing legal and equitable interests of the parties in the propertypertaining to the relevant case; •Secondly, although section 79 confers a broad power on a court exercising jurisdiction under the Act, to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion; •Finally, whether making a property settlement order is just and equitable is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in section 79(4). [51]  Federal Magistrate Wilson, albeit prior to the High Court’s decision in Stanford,discussed the interaction between section 79(4) and section 79(8) in Cornell v Stokes .19 After a review of the relevant authorities, he concluded that the following seven considerations were engaged in a case involving the death of a party, after the institution of family law property proceedings: •The estate must demonstrate that the court would have made an order in favour of the deceased person as at the date of death. But, in so doing, the estate is not limited to evidence at the date of death; •In order to satisfy the first prerequisite arising under section 79(8)(b)(i), it is not necessary for the court to determine what orders would have been made; •In so doing the court must embark upon the exercise stipulated in section 79(4); •The court must then determine whether it is appropriate to make an order; •In this context, the court’s discretion should not be exercised lightlyand should only be exercised in limited circumstances, so as to satisfy moral obligations that remain unsatisfied; •The deceased party to the marriage has a prima facie moral entitlement to his or her contributions based entitlements to matrimonial property; •The size of the pool and the needs of the surviving spouse, including section 75(2) factors must be taken into account in formulating any orders. [52]  In summary Wilson FM considered that once the first limb in section 79(8)(b) was satisfied it was not then simply a case of the court applying section 79(4) and section 75(2), as this would deprive the second limb of any utility. It was still necessary to consider the appropriateness of making any order in favour of effectively the beneficiaries of the deceased estate. Whether it was so appropriate was likely to turn on question on what moral obligations the surviving spouse had to meet. In practical terms, what this meant was that: [W]hat the court really looks to is the contributions based entitlement of the deceased party, which the surviving party has a moral obligation to meet, and to then ask whether that entitlement should be adjusted for section 75(2) factors relating to the surviving spouse, or for any other reason.20 [53]  It also seems to me, on the basis of Stanford, the court in determining the appropriateness of whether to make such an order must also consider the application of section 79(2) and whether it is just and equitable to make any order altering an existing proprietorial arrangement. ... [89]  I have taken some time to outline the various legal principles, which will be applied in determining the competing claims of the parties in respect of the marital property. On any view, the husband has a claim to a significant proportion of this property given considerations of prospective factors can now only favour him. In addition, the claims of the estate turn on the moral obligations, which arise in respect of the late wife’s nominated beneficiaries, her grandchildren Ms F and Ms G. ...": Cottrell & Cottrell [2022] FedCFamC2F 704.

• "[52]  Taking into account the contributions of the wife to which I refer to below and the moral obligations that remain unsatisfied, I consider it still appropriate to make an order. ...": Ament and Ament [2010] FMCAFam 1344 -- see case.

• "[21]  I do not think that once the Court is satisfied of the prerequisite in s 79(8)(b)(i), it should then approach the matter simply by applying ss 79(4) and 75(2) of the Act. That would deprive s 79(8)(b)(ii) of any utility. In my view, that subsection requires the Court to take into account the death of one of the parties to the marriage and ask whether it is still appropriate to make an order effectively in favour of the beneficiaries of that party’s estate. A more restrained or limited approach should be taken, as supported by the obiter remarks of Gibbs CJ and Brennan and Wilson JJ in Fisher. That may mean, in practical terms, that what the court really looks to is the contributions based entitlement of the deceased party, which the surviving party has a moral obligation to meet, and to then ask whether that entitlement should be adjusted for s 75(2) factors relating to the surviving spouse, or for any other reason.": Cornell and Stokes [2008] FMCAFam 774.

• "[150]  Mr Mawson generally submitted to the court that there should be a finding of the husband's entitlement to benefit from his contributions and generally to provide a proper entitlement to his estate. He referred me to the decision in Menzies v Evans (1988) FLC 91-969 where the wife died before hearing. The presiding judge, Smithers J, held that the wife's estate should not be deprived of the benefit of her contributions to the marriage. Smithers J stated at 77,010 that [I]t would in my view be wholly inappropriate that the deceased should be deprived of the benefits of her contributions over so many years. [151]  Menzies was cited with approval by the Full court in Tasmanian Trustees Ltd and Gleeson (1990) FLC 92-156. Referring to Smithers J's decision in Menzies, Nygh J stated at 78,086: I wholeheartedly agree with the learned Judge in that case that the deceased has a prima facie moral entitlement to the share gained by contribution during his or her lifetime and, if this is so desired, to dispose of that share by will to persons who are strangers to the marriage." (my emphasis) [152]  In the present case, it is apparent that an assessment of s 75(2) factors would inevitably favour the wife, and this is what I have found. However it is proper and reasonable for any adjustment to be balanced on the particular facts and having proper regard to the husband's moral rights and entitlements.": Leggero & Jagger [2007] FamCA 659.

• "The second proposition I derive from this is that the wife's needs are large enough to justify an adjustment in her favour of the share to which the husband, had he lived in 1989, might have been entitled to by way of contribution. As I remarked in the course of argument, it would be rare for a court to deprive one of the spouses of the marriage of the entire share to which he or she might be entitled by reason of contribution, having regard to the needs of the other party. But, as I pointed out, whilst it might be rare, it does occur and the obvious example is a situation where the estate is very small, consisting of a modest former matrimonial home, where one spouse has no earning capacity and the other spouse is unwilling or unable to contribute to the support and maintenance of the spouse in possession of the house and any dependents. There is no absolute principle in this court that a party is not under any circumstances to be deprived of the fruits of his or her contribution, although it is proper to say, generally speaking, that the court should be reluctant to take that step. I consider that the proper approach in a matter such as this was taken by Smithers J in the case of Menzies v Evans , to which I have earlier referred. I wholeheartedly agree with the learned judge in that case that the deceased has a prima facie moral entitlement to the share gained by contribution during his or her lifetime and, if this is so desired, to dispose of that share by will to persons who are strangers to the marriage. But the facts of this case are quite different to those in Menzies v Evans. In Menzies v Evans , supra, the estate was more than ten times the size of the estate in this case. The husband in Menzies v Evans was of an extremely advanced age and his needs were small and adequately catered for out of the portion to which he was entitled by reason of contribution. In this case the estate is very small and the needs of the wife are overwhelming. Ultimately, as his Honour pointed out in his judgment at p 29, the power of the court pursuant to s 79(8)(b) is discretionary. Having regard to the facts and circumstances of this case, I cannot say that the conclusion reached by his Honour, that the wife's sole tenancy by reason of survivorship should not be disturbed, is an outcome which is manifestly unjust. In those circumstances I would dismiss the appeal.": Tasmanian Trustees Ltd & Gleeson (1990) 14 Fam LR 189, 193-4 (Nygh J).

• "[80]  In support of his contention that an adjustment of 10 per cent was inadequate, it was submitted on behalf of the husband that the Estate has no needs whereas the husband has the significant and ongoing responsibility to support and accommodate himself and the two children. It was submitted that the needs of a surviving spouse have a "decisive impact" and that an adjustment of 10 per cent was inadequate, especially given that the dollar value of the adjustment is only approximately $99,000. Counsel contended that the pool of property available for distribution in this matter is not large, and that as such there should have been a greater adjustment. In support of this contention counsel referred us to the decision of Tasmanian Trustees Ltd and Gleeson (1990) FLC 92-156 per Full court (Nygh J with whom Strauss and Baker JJ agreed). [81]  In that case, the husband died while judgment with respect to property settlement was reserved. The Full court recognised that the most obvious difference caused by the husband's death was the fact that the deceased no longer had any s 75(2) needs for the future, while the survivor continued to have such needs. While the Full court recognised (at 78,086) that the deceased had "a prima facie moral entitlement to the share gained by contribution during his or her lifetime and, if this is so desired, to dispose of that share by will to persons who are strangers to the marriage", the surviving wife's needs were found to be large enough to justify an adjustment in her favour of the share to which the husband might have been entitled to by way of contribution had he not died, in circumstances where the estate was very small and the wife's needs were "overwhelming". The trial judge had found it was no longer appropriate to make an order with respect to the former matrimonial home which the wife would retain by survivorship. [82]  Again, in Re Parrott v Public Trustee of NSW (1994) FLC 92-473 it was recognised (at 80,906) that: it is clear enough that the death of one party has a profound effect upon the balance of s 75(2) factors, as the Full court pointed out in Tasmanian Trustees Ltd and Gleeson (1990) FLC 92-156. [83]  However, although it is clear that when a spouse dies there are generally no s 75(2) factors that can be taken into account in favour of the estate, and that that should highlight the needs of the surviving spouse and the fact that they have to be met, it is equally apparent that that should not detract from the need to recognise the entitlement of the deceased spouse (which devolves onto that spouse's estate) arising from a consideration of the respective contributions of the parties.": Van der Linden & Kordell [2010] FamCAFC 157. 

• "[68]  Counsel for the respondent in closing submissions referred to the continuum of cases typified by the Tasmanian Trustees Ltd v Gleeson (1990) FLC 92-156 at one end and Menzies v Evans (1988) FLC 91-969 at the other, being the matter which was addressed in the decision of Re Parrott v Public Trustee (NSW) (1994) FLC 92-473. [69]  The issue in these cases involves the balancing of the prima facie moral entitlement of the deceased to the share gained by the contributions made during his lifetime and the disposition of that share to his chosen beneficiaries against the consideration of not only contributions but the needs of the surviving spouse, noting the absence of the needs factors with the estate. It also involves a consideration of amongst other things, the size of the estate and the age of the surviving spouse.": Bevan and Bevan and Anor [2012] FMCAFam 370.

Moral Claims - no scope to bring into statutory framework a non-legal consideration with no foundation in the Act

• "[53]  Section 79(8) allows proceedings to continue after one party’s death — it does not allow proceedings to sprout new appendages and evolve beyond what they were in that party’s lifetime, although this does not prevent new issues or cross-applications being raised within those proceedings.56 To this end s 79(8), particularly in subs (b)(i), requires demonstration that the proceedings ‘[retain] the character they had when instituted’.57 Insofar as Brennan J refers to ‘moral obligations’ and ‘moral claims’ above, the High Court in Stanford clarified that this is not to be understood as importing non-legal considerations with no foundation in the Act.58 The overarching question to be asked (and complied with under s 79(2)) is whether it is just and equitable for the court to make an order with respect to the parties’ property and, if so, the form that order should take if an order is still appropriate. It is not a question of whether ‘moral claims’ have been left ‘unsatisfied’ or ‘moral obligations’ left ‘unfulfilled’.": Jensen & Jensen [2022] FedCFamC2F 1190.

• "I do not believe that the submission on behalf of the husband is correct. When Brennan J said, “The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been complted” he was referring to the situation that arises when the claim is against the deceased spouse, and not against the surviving spouse. Where a claim is continued on behalf of a deceased spouse, there is nothing in his Honour's judgment, in my view to suggest that the unsatisfied moral obligations arising out of the marriage, to which he referred, do not include recognition of matters such as contributions made by the deceased spouse. I do not believe that there are statements in any of the judgments in Fisher which suggest that claims of a spouse, which are sometimes characterised as moral claims, arising by virtue of matters stated in s 79 of the Act, and which include contributions to the acquisition and conservation of property, and contributions to the welfare of the family, are to be disregarded under s 79(8) upon the death of the spouse, unless children of the marriage stad to benefit by the claim. The contributions of a spouse are not set at naught, simply because, when he or she dies, the assets are left to grandchildren or strangers rather than to children.": Menzies & Evans (1988) 12 Fam LR 519, 527.

Other senses of 'moral obligation'

• "[97]  A party’s ill health does not, in itself, justify an adjustment under s 75(2)(a). It is not the task of a court with jurisdiction under pt VIII to engage in social engineering under s 79(4)(d)–(g) — that is, to serve any ‘moral’ or ‘charitable’ (but non-legal) ends outside the bounds of s 79.107 The Full Court in Beck & Beck (No 2) explained that   [i]t is the financial consequences of all of the relevant matters that are to be taken into account and the section is so drafted to effect this purpose while excluding matters of conduct in a moral or non-financial sense.": Jensen & Jensen [2022] FedCFamC2F 1190.

• "[105]  The husband has a singular personality. He is not, however, a liar. He is something of a pedant by nature. He was methodical in the presentation of his case and a stickler for exactitude to the point of literalism. He approaches matters in dichotomous terms. A time limit either applies or it does not. For obvious reasons, he is disinclined to help the wife. It is his view that she has no moral entitlement to his compensation payments as she, in effect, abandoned him when he was most in need. ... [111]  But, as it was he who took up the struggle, in the face of Ms Vince’s objections and against great odds, the victory must be his alone, given his perception that Ms Vince repudiated his struggle and abandoned him, when he needed her support the most. As such, in moral terms, she should not share in the fruits of his victory and it would be against his personal principles for her to do so.": Vince & Vince (No.2) [2021] FCCA 282.

• "[122]  A constructive trust does not rely upon a concept that a party has been unjustly enriched to the detriment of another but rather, far from any notion of fairness, justice, equity or moral entitlement, a court should intervene “to prevent the unconscientious denial by the legal owner of another parties’ rights”.: Ingles v Ingles [2019] FamCA 33.

FLA property settlement take priority over testamentary beneficiaries

• "[82]  As noted earlier, quite apart from the fact that the discharge of the deceased's "moral claims" to the respondent have "priority" over those of testamentary beneficiaries of the estate of the deceased, in this case there was no evidence of any facts or circumstances which might, howsoever viewed, have fallen within the ambit of s 75(2)(e)(ii) or s 75(2)(e).": Smythe & Smythe [2007] FamCA 1212.

• "Section 79(8) does not confer jurisdiction on the Family Court to entertain proceedings commenced after the death of one of the parties to the marriage. The proceedings to which it relates are proceedings commenced between the parties to a marriage with respect to the property of those parties or either of them arising out of the marital relationship or otherwise falling within para (ca) of the definition of “matrimonial cause” in s 4(1) of the Act. The proceedings must have been a matrimonial cause commenced pursuant to s 79(1). The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims made in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property” (s 79(8)(b)(ii)). That qualification on the power, coupled with para (ca)(i) of the definition of “matrimonial cause”, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied. Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party's property or by any other devolution of that property on that party's death. That is a law which governs an incident of marriage in that it provides the machinery for enforcing the moral obligations with respect to property arising from a spouse's marital relationship. It is a law with respect to marriage. That is not to say that the exercise of the jurisdiction under s 79(8) is governed by precisely the same considerations as govern the making of orders under a Testators’ Family Maintenance Act, much less to suggest that there is any inconsistency between s 79(8) and legislation of that kind: see In the Marriage of Smith (1986) 60 ALJR 508 at 519; ; 66 ALR 1, at 21–2 However, there will be occasions when an order made under s 79(8) will satisfy or go towards satisfying a moral obligation which might otherwise have warranted the making of an order or an order in a larger amount under Testators’ Family Maintenance legislation. It follows from what I have written that the validity of s 79(8) would not be affected if it related to the continuation of proceedings after both spouses had died provided the proceedings were being carried on to obtain an order satisfying the moral obligations owed to their children. But it is clear from the context of s 79(8) that “either party” should not be construed as both parties. The provisions of para (a) show that the sub-section is intended to operate when there is but one “deceased party” by or against whose legal personal representative the proceedings may be continued.": In the Marriage of Fisher (1986) 161 CLR 438 (Brennan J). 

Double Dipping - FLA and Succession

• "[109]  Fifthly, these considerations also undermine the Administrator’s argument that the wife is somehow “double dipping.” This submission is rejected. The wife has rights under both the Family Law Act and the Succession Act. She is not obliged to elect between them in some way. The rights under the Succession Act arise as a matter of law, no exercise of discretion is involved. It seems likely that the wife’s entitlements under the Succession Act should, at Final Hearing, be taken into account as a species of property or financial resource pursuant to s 75(2) and this would affect the nature of any just and equitable order in these proceedings. Although no final view can be formed about such a possibility at this stage, it would likely address any perceived problem of “double dipping”.": Pretswell (deceased) & Pretswell [2019] FamCA 395.

Relation to Stanford and elderly in care homes in relationships

• Taylor & Taylor [2017] FCCA 125.

[B] Effect of Property Settlement under the Family Law Act 1975 (Cth) on Family Provision Claims (State and Territory)

• See Probate & Administration in Wong on Wills & Probate. 

• Former defacto, former spouse - Property Settlement - effect of, on Family Provision Claim: 

> "[128]  One matter of significance is whether the claimant and deceased finalised their financial relationship at the time of the divorce or subsequently, whether by agreement or by means of court orders (as occurred in the present case after contested hearings). As Dijkhuijs shows, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse.": Lodin v Lodin [2017] NSWCA 327.

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