Through the Looking Glass: Wrongful Death, Remarriage and Australian Law Reform

Abstract

Nineteenth Century wives were generally financially dependent upon their husbands and widows expected to remarry to ensure economic survival. In wrongful death actions, a widow’s compensable loss was therefore reduced by her prospect of replacing the pecuniary benefit formerly provided by a deceased spouse through remarriage. In November 2002, a modern Australian High Court in De Sales v Ingrilli (2002) 212 CLR 338 purported to abolish this “remarriage” discount. However not all considerations of “marriageability” have been excluded from this form of compensation calculation. In the context of the action’s historic social development and the rationale underpinning the remarriage discount, this article considers the recent wrongful death jurisprudence and future areas for reform.