Australian Widow Charges Courts with Gender Bias

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Regina Graycar

SYDNEY, Australia (WOMENSENEWS)–If an Australian woman is young and attractive, her claim for compensation on the accidental death of her husband may be reduced.

Teresa de Sales wound up in this situation when she filed a claim in the local courts after the death of her husband in October 1998 under the Fatal Accidents Act. The court calculated the loss of her husband’s financial expectations at $390,000, but then reduced that amount by 5 percent on the premise that the 36-year-old deSales was likely to remarry and that, once shedid, she would gain the financial support of her new spouse.

Unhappy with the decision, de Sales appealed to the Supreme Court of Western Australia. In December 2000, however, her unhappiness only worsened, when the court lowered her settlement further, this time cutting it by 20 percent. In its judgment, the court cited her “age and credentials” and strong prospects of remarriage. De Sales appealed the decision in the High Court of Australia. She objected to having her compensation based on her prospects of remarrying, her physical attributes and she also challenged the assumption that she would benefit financially if she did, indeed, remarry.

In November 2002, a seven-member bench of the High Court allowed the appeal. According to Justice M. Kirby, it was not uncommon to see widows described by judges as “well groomed, attractive and presentable with a personable and warm nature” during discussions of her settlement. “On my reading of the cases,” he said, “such an evaluation of the physical attractiveness is not normally made in the case of male claimants. If the judge considered that the widow was ‘elderly’ or of ‘unattractive appearance or disposition, or suffers from some disability, or is encumbered with a large number of young children,’ such comments–except perhaps the last–might usually be left unsaid but with only a small discount for the prospects of remarriage being allowed.”

From there, the matter has been directed to the full High Court for further consideration. Now, as the matter still awaits a final verdict–primarily on the size of the discount–the case is stirring a national debate.

Adherence to Archaic Law

De Sales finds it hard to understand why Australia still follows a 140-year-old law that discriminates against women. Especially when England, in 1971, threw out the original law–upon which the Fatal Accidents Act is based–because of its sex discrimination.

The assumption of the law, she says, underlines a stereotypical presupposition that a good-looking woman is more likely to marry than a less attractive one. It also annoys her that a man’s physical appearance hasn’t ever been taken into account in calculations of a widower’s likelihood of remarriage. “It’s such an outdated, archaic law and shouldn’t be applied in modern times,” said de Sales.

Discounting for the prospects of remarriage or some other relationship should be judicially abolished, she said, and vowed to continue her fight until the law is changed.

Women’s-rights activists are with her. “To make such judicial decisions is to continue a long tradition of assuming an object status for women, rather than the subject status that men are accorded,” said Dr. Judy Lattas, director of Macquarie University’s Institute of Women Studies in Sydney. “Feminist analysis has identified this tradition as underpinning much of the inequality and oppression that women continue to suffer in Western cultures.”

Professor Regina Graycar, who teaches gender, injuries and compensation at the Sydney University of Law, contends that the present legal system does not address gender concerns adequately when it comes to injuries and compensation.

“The present practice is obviously distasteful. The whole assumption under this law is stereotypical and damages women,” said Graycar. “Compensation can not be measured by the physical appearance of women. The problem is that this law does not treat women equitably and needs to be changed.”

Marriage not Necessarily Lucrative for Women

Women also point to a fallacy underlying the practice of reducing a widow’s settlement based on her likelihood of remarrying. Researchers, they contend, have found that while men’s income tends to increase with marriage, the same is not true for women after marriage.

“Other studies,” said Lattas, “have shown that, in general, women’s health suffers with marriage and improves with separation from the husband, but that the husband’s health deteriorates with separation and improves with marriage. Any financial compensation for the woman should be increased based on her likelihood to remarry, rather than be reduced.”

The controversial practice of discounting compensation based on remarriage prospects has prompted law-reform commissions of various Australian states to consider the matter. The New South Wales Law Reform Commission has decided that neither the possibility of remarriage, nor the actual remarriage, should be a factor in deciding the compensation claim. But the law-reform commission of Western Australia has so far decided that that however distasteful, assessing the prospects of remarriage is a necessary factor of just settlements.

The Queensland Law Reform Commission is now reviewing the law and has invited suggestions from women’s organizations, lawyers and nongovernmental organizations.

“We are in the process of conducting a review of the practice,” said the commission’s spokesperson, Penny Cooper. “Suggestions about factors that should be considered in the assessment of damages to be awarded have been received. Our recommendations will be based on these suggestions.”

But, whether or not the law-reform commission recommends a change in this law, the key decision will be coming from the Supreme Court of Western Australia, where de Sales case is pending.

Swapna Majumdar is a journalist based in New Delhi writing on politics, gender and development issues.

For more information:

Queensland Legal Reform Commission:
“Effect of remarriage or divorce on damages in a wrongful death claim”:
http://www.qlrc.qld.gov.au/projects.htm#4

Australasian Legal Information Institute–
de Sales v Ingrilli P57/2001 (17 April 2002):
http://www.austlii.edu.au/au/other/hca/transcripts/2001/P57/1.html


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