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Divorce, Death and Subpoenas

Divorce, Death and Subpoenas

By Stephen Lucas, Principal Director at Kingston Lawyers Pty. Ltd.

It is well known that if you receive a subpoena and fail to comply with same you may be arrested. It is also well known in family law proceedings that inheritances received during the course of the marriage are very often divisible property between separating couples. A recent South Australian case highlights the significance of this.

The Husband and Wife married in 2001 and separated in 2013. The Husband was from a less well off family. The Wife’s family was very well to do, she being allegedly from one of the “wealthiest families in the State.” The Wife’s father died in 2009 therefore during the period the parties were married to each other. The Wife’s father was survived by his wife and four children, one of whom was the Wife in the family law case.

In the divorce proceedings between the Husband and the Wife, the Husband issued subpoenas to the Wife’s mother (who was the widow) and to her three siblings requesting details of the assets of the Wife’s deceased father and his Will and other information. The Wife’s mother through her solicitor objected to the subpoena. She instead had her solicitor swear an affidavit setting out details of the estate hoping this would settle the Husband’s enquiry. The Family Court ruled this to be inadequate, and demanded that this widow and the three siblings of the Wife be required to comply with the subpoena within 14 days and for them to pay the Husband’s costs. The Wife’s mother and her three siblings appealed this decision to the Full Court of the Family Court. Their appeal was dismissed. The Court ordered immediate compliance and further ordered that the widow and her three other children pay the Husband’s costs of the further objecting proceedings.

The main point is this, if you are involved in Family Law proceedings, your own family may well become embroiled in the dispute!

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