Bigamy & Intestacy

After her husband died a Woman found that he had been married in Serbia at the same time as being married to her. Notwithstanding the unwitting nature of this bigamous union the Court held that the nature of this second marriage meant that,

“[s]he is thus not the widow of the testator, and not in the class of persons who may make application for provision out of the testator’s estate”.

She was therefore not entitled to make an application for family maintenance.

Legislation has been amended to provide that where the deceased is married and also has a de facto,  a bigamist’s second or subsequent partners may be entitled to a share of an intestate estate if they meet the definition of a de facto spouse.

A deceased’s personal effects could cause difficulties in a situation where two spouses are claiming ownership over the deceased’s assets. South Australian law provides that, where a person dies intestate in a similar situation as above both the wife and the de facto would be entitled to equal shares in the property (including personal property). If a dispute arises between the two regarding the division of personal property, the administrator of the intestate estate may sell them and distribute the proceeds of the sale.

In a similar situation in the Northern Territory the de facto partner of the intestate is entitled to all the personal effects if they:

  • were the continuous de facto partner for more than two years immediately preceding the intestate’s death, and
  • the intestate did not at any time during that period live with the person to whom they were married

Queensland provides for the distribution of the intestate’s personal effects to be negotiated or imposed by the Court. Similarly alternative dispute resolution procedures are generally used in Tasmania where there is both a surviving spouse and defacto.

However if there was a limit placed upon on the number of de facto partners that may claim under an intestate estate it could lead to the parents of some children of the intestate not being provided for. Where there is more than one spouse or partner each spouse or partner of the intestate should share equally in the estate (including statutory legacies). If there are insufficient funds for a full statutory legacy for each spouse, the amount that is available should be shared rateably. Each child of the intestate should also be entitled to an equal share .


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