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What Happens After The Death of a Party?

If a couple separates and one partner dies before there has been a final distribution of property, the question arises as to how the asset pool will be disposed of. How parties must proceed in this situation will depend on whether either party had commenced proceedings prior to the death of a party. If proceedings have not been commenced and a party dies, the law to be applied will be the law of deceased estates. The surviving partner will not be able to commence family law proceedings after the death of the other party. However, if proceedings had been commenced prior to the death of a party, they may be continued against the estate of the deceased party.

How will the court provide for the surviving party?

The family maintenance laws of the relevant state or territory will enable the court to provide for the maintenance, advancement and education of the surviving party if the court considers that the deceased’s will made inadequate provision for them or that the deceased made inadequate provision for them during his or her life.

What if family law proceedings commenced before the death of a party?

If family law property proceedings commence and then one of the parties dies, the remaining party may continue the proceedings between themselves and the estate of the deceased. If both parties die after family law proceedings have been commenced, the proceed8ings cannot continue.

If parenting proceedings have commenced and one of the parties dies, the proceedings must be discontinued.

Continuing proceedings after the death of a party

If property proceedings have been commenced and a party dies, the proceedings can be continued by the executor or administrator of the deceased’s estate. The proceedings will be suspended under rule 6.15 of the Family Law Rules until the deceased’s legal representative is substituted as a party. The legal representative must ask the court for procedural orders in respect of the future conduct of proceedings.

Under section 79(8) of the Family Law Act, if the court considers it appropriate to make orders with respect to property after the death of a party, it may make such orders as it considers appropriate.

Neubert v Neubert

In the 2017 decision of Neubert (deceased) v Neubert and Another, the Family Court considered the principles that must be applied to determine the appropriate distribution of property. In that case, the parties had been in a relationship for 19 years and had separated. The wife commenced proceedings for financial orders. While these proceedings were on foot, the wife was driving through Hobart with her friend when the husband saw the wife’s car and forced her to stop. He was armed with a shotgun and proceeded to shoot the wife dead. He also shot her friend, causing her significant injury and permanent disfigurement.

The friend obtained a judgment for damages against the husband in the Tasmanian Supreme Court. She later intervened in the family law proceedings between the husband and the wife. The Family Court found that it was appropriate to make orders, given the wife would have been entitled to a significant adjustment of assets given she had made significant contributions.  The court found that it was still appropriate to make orders. It determined that the property should be adjusted 65% to the husband and 35% to the wife, with the husband’s entitlement to be paid in damages to the intervenor.

This case is a good example of how the court’s discretion to make orders when it is appropriate can be exercised after the death of a party where proceedings have already commenced.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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