Guardianship law is a complex area, and one question that often arises is whether a guardian can initiate divorce proceedings on behalf of a represented person.
In this blog post, I explore this topic in the context of Western Australian guardianship law, with reference to the decision in LWL [2008] WASAT 35.
The Guardianship and Administration Act (GA Act)
The GA Act is the key legislation governing the appointment and role of guardians in Western Australia.
However, the Act is silent on whether a guardian can initiate divorce proceedings on behalf of a represented person.
To understand the relevant provisions, we need to look at sections 45 and 46 of the GA Act.
Plenary Guardians (s 45)
Section 45(3)(d) of the GA Act explicitly states that a plenary guardian cannot give consent in relation to the marriage of a minor, sign a notice of intended marriage, or take part in the solemnisation of a marriage under the Marriage Act 1961 (Cth).
However, there is no mention of divorce proceedings in this section.
Under s 45(2)(g) of the GA Act, a plenary guardian may commence, conduct, or settle any legal proceedings on behalf of the represented person, as their next friend, except proceedings relating to the person's estate.
This provision may suggest that a plenary guardian has the authority to initiate divorce proceedings, but it is not explicit.
Limited Guardians (s 46)
Section 46 of the GA Act allows for the appointment of a limited guardian with specific functions vested in them by the Tribunal.
A limited guardian, if given the function under s 45(2)(g), may have the authority to initiate divorce action for a represented person by way of a case guardian, as per Pt 6.3 of the Family Law Rules 2004 (Cth).
LWL [2008] WASAT 35
In LWL [2008] WASAT 35, the Tribunal addressed the issue of whether a guardian could initiate divorce proceedings on behalf of a represented person.
It was decided that the matter required obtaining legal advice on behalf of the represented person, as the issue was at a preliminary stage.
The Tribunal then appointed a limited guardian, MIL, with the function of seeking legal advice on whether divorce proceedings could be initiated against the represented person's spouse.
The Tribunal also directed MIL to seek directions from the Tribunal pursuant to s 74 of the GA Act once the legal advice had been obtained.
Key Take-Aways
While the GA Act does not explicitly address whether a guardian can initiate divorce proceedings on behalf of a represented person, the decision in LWL [2008] WASAT 35 suggests that a limited guardian may have the authority to do so, provided they have been granted the relevant function under s 45(2)(g).
However, it is important to obtain legal advice on the matter, as was the case in LWL.