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Death During Family Law Proceedings

The death of a party in family law proceedings demonstrates a relationship between family law and estate law. This article explains what happens after the death of a party and the consequences of convergence of the two areas of law.

If proceedings have not begun

If neither party has begun family law proceedings when a party dies, the matter is dealt with under estate law.

Each state and territory has an equivalent Act that allows a court to order that provision be made out of a deceased estate for the “proper maintenance, education or advancement in life” of a family member if inadequate provision was made from the estate or during the life of the person who died.

In deciding an application for family provision, the court may consider factors such as:

  • the nature and duration of the applicant with the deceased person;
  • the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant;
  • the nature and extent of the deceased person’s estate, and any contribution made by the applicant to it;
  • the financial resources and needs, current and future of the applicant;
  • any physical or intellectual disability of the applicant;
  • the character and conduct of the applicant before and after the death of the deceased person;
  • whether any other person is liable to support the applicant.

If proceedings have begun

If a party dies during family court proceedings, the Family Law Act 1975 allows a “legal personal representative” to continue proceedings for that party.

If the court considers it would have made an order about property if the person had not died, and considers it is still appropriate to make an order about property, it can make an order about any property of the parties, and the order can be enforced on behalf of, or against, the deceased estate.

The Act does not define “legal personal representative”, but it generally refers to that the executor or administrator of the estate.

Family Court proceedings are suspended when a party dies until the legal personal representative becomes a substitute party. Rule 6.15 of the Family Law Rules states  the legal personal representative must ask the court for procedural orders in relation to the conduct of the case, and allows the court to order that the representative be substituted for the deceased person as a party.

Under the Act, the same process applies for de facto relationships, except that parties are required to establish that their relationship had broken down before family law proceedings were initiated, in addition to proving a de facto relationship existed.

In all cases, if both parties die during family court proceedings, those proceedings end.

In spousal maintenance proceedings, if either party dies, those proceedings end.

In child custody proceedings, if a party dies, unless parenting orders have specified what must happen, the surviving parent does not automatically obtain full custody of the child. Where there are other parties, such as a step-parent or grandparent, who want to be involved in the care, welfare and development of the child, an agreement may be reached between all the parties. If there is disagreement, a party can apply to the court to determine who should have parental responsibility for the child.

When a will has not been updated

An outdated will can create a variety of problems in family law. One such problem involves the deceased’s legal and beneficial interests in property. If a surviving party benefits financially from the other party’s death, via a life insurance payout or transfer of assets via survivorship, for example, this could be relevant to the question of whether it is still appropriate for the court to make an order. It could also be relevant if, alternatively, assets were required to be transferred to the estate.

In a 2015 case involving the death of a wife, which had the husband take on the role of homemaker and sole parent to their children, a judge remarked that “the legislation intended that one party to a marriage which has broken down to the point that proceedings have been commenced for orders altering the interests of the parties in property should not profit by the fortuitous death of the other party prior to the determination of those proceedings”.

Another such problem is when the surviving party is nominated as executor of the deceased person’s estate. The surviving party may then be the legal personal representative for the deceased party, becoming both the applicant and respondent in family court proceedings.

These scenarios show why it is critical that a person updates their will if they marry, separate or divorce, to ensure their wishes are reflected.

For advice or representation in any legal matter, please contact Armstrong Legal.

Sally Crosswell

This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

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