4 Apr 2019

Written by Eliza Fitzgerald, Solicitor, Family Law

Nowadays, couples are often separating later in their lives, and are often faced with extensive delays when litigating in the Family Court. Due to these factors, death is something that needs to be considered when it comes to family law proceedings commenced later in life. So, what happens if a party to proceedings dies? This article will explore common questions that often arise in relation to death and family law proceedings.

Do the proceedings end?

In the unfortunate event that one party to the proceedings dies, the deceased party’s ‘legal personal representative’ can continue proceedings on their behalf. Although there is no specific definition for ‘legal personal representative’ under the Family Law Act 1975 (Cth), generally the legal personal representative is the executor or administrator of a party’s will. However, until the ‘legal personal representative’ of the deceased party is substituted as a party to the proceedings, the proceedings are generally suspended.

In the unlikely event that both parties to the proceedings die, the court does not have jurisdiction to hear the matter and consequently the proceedings end.

What if the legal personal representative of the deceased is the surviving party to proceedings? 

If the deceased party failed to update their will post separation and the surviving party was nominated the executor of their estate, then the surviving party may be their legal personal representative in circumstances where the deceased person had a clause in their will which has the effect of not revoking their will upon divorce. This means the surviving party may become both the applicant and respondent in the Family Court proceedings.  For this reason, it is critical that you consider updating your will if you marry, separate or divorce to ensure that your will reflects your wishes.

Does the court have to make an order IF A PARTY DIES?

The court does not have to make an order altering property interests.  Section 79(8)(b) and s 79(2) of the Family Law Act 1975 (Cth) requires the court considering an application for a property settlement order, which is continued by or against the legal personal representative of a deceased party, to determine:

  1. whether it would have made an order with respect to property if the deceased party had not died; and
  2. whether despite the death, it is still appropriate, just and equitable to make an order.

If your proceedings involve a deceased estate, or may potentially involve a deceased estate, our experienced lawyers at HHG Legal Group can assist you in ensuring you obtain the best outcome possible. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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