Multiple Spouses Recognized by NSW Law

In June 2009 the NSW Parliament updated the law on intestacies (when someone dies not having made a Will). Read the new Bill here. For years the law of intestacy has provided a way for relatives to benefit from a deceased person's estate.

Recently The Australian newspaper drew attention to the new laws (see the article here).

In the updated law the horizon has widened over the definition of relationships that potentially can qualify to benefit from a deceased estate. Among the new relationships recognized in intestate matters are:

* defacto partners
* the broader "next-of-kin" relationships among the Aboriginal communities

AND

* multiple spouses.

Its funny but nobody has so much as uttered a squawk about the implications of "multiple spouses"!

What is meant by "multiple spouses"? Is this referring to people who have sequential marriages or sequential defacto relationships? This seems to be the understanding of some politicians. So the Rev Gordon Moyes said in Parliament:

"multiple spouses create issues. Multiple spouses may be complicated. Sequential spouses are generally being referred to here rather than multiple spouses. The bill provides for property to be shared between those surviving spouses in accordance with a written agreement—a distribution agreement—or in accordance with a court order—a distribution order. The multiple spouse provisions are contained in new sections 122 to 126. "

However Rev Moyes's speech suggests that he has not quite grasped the matter. That section of the Bill is not referring to sequential relationships.

The Act in Section 122 simply and repeatedly says: "if an intestate leaves more than one spouse ..."

The Act is actually covering households where someone has relationships involving multiple partners/spouses at the same time (not chronologically). That means, for example, a man who has two, three or more women living with him as wives/defacto partners; it also covers gay relationships where several partners co-habit or where many men are involved simultaneously in a relationship with the person who has died.

Lest anyone think that the lay-reader is misunderstanding Section 122 of the new Act, let me draw attention to the clear and unambiguous language of the NSW Law Reform Commission's Report 116 (2007) on the matter. Chapter 6 of this Report is entitled "Multiple Partners" and specifically refers to the following sub-categories:

* Intestate leaves a spouse and a defacto partner

* Intestate leaves more than one partner

* Bigamous Unions


And note also the earlier paper, The NSW Law Reform Commission's Issues Paper 26 (2005) Uniform Succession Laws (Intestacy). Points 3.5 - 3.7 refer to "bigamous unions", and has the sub-title heading in the plural form "Spouses to be treated as separate persons".


These two Law Reform Commission papers show that the move to recognize multiple spouses has carried on quietly in every state of Australia over the past ten years where the Succession laws are being gradually updated. NSW is the last of the states to come into line (the Northern Territory is the last jurisdiction waiting in the wings to update its law). So welcome to the new and curious society where it is illegal to marry many spouses while you are alive but if you have happened to have many wives (think the Islamic communities; think the fundamentalist Mormons; think the gay communities) and you die without a Will, then retrospectively those relationships will have had some legal status!

How did the religiously conservative Rev Nile and Rev Moyes miss that fact when they reviewed the legislation last month? Time to start posing explicit unambiguous questions to Mr John Hatzistergos the NSW Attorney General and to Mr Laurie Glanfield the Director General of the Attorney General's Department. Oh and don't worry if your letter isn't answered immediately. These guys are good at having letters drafted, that take a while to be date-stamped and then usually take another 7 - 9 days before they are put in an envelope and posted.