By Elizabeth Pathmaraj – Senior Associate
Couples separate at all stages of life. On top of age factors, nobody is immune to just how unpredictable life can be. When a party dies during family law litigation, the other party is often left in a panic about what it is going to mean for them. Do the Court proceedings end? Do they become a lot more complicated?
Pursuant to section 79(8)/90SM(8) of the Family Law Act 1975 (Cth), if Court proceedings are already underway, the proceedings can be continued by or against the legal personal representative of the deceased’s estate.
No further steps can be taken until the legal personal representative has been substituted into the existing Court proceedings. So, the other party cannot simply withdraw their application and end the proceedings, unless the legal personal representative has been substituted for the deceased party and agrees to the withdrawal.
Once the legal personal representative has been substituted, the Court then needs to consider whether an order would have been made by the Court, if the party had not died, and whether it is still appropriate for the Court to make an order. The order needs to be just and equitable in the circumstances.
Does death change the overall outcome of family law proceedings?
If one party dies, it will change the overall outcome of the family law proceedings. This is because one of the factors the Court needs to consider when deciding whether a property settlement is just and equitable is whether there should be an adjustment for “future needs”.
A deceased party has no future needs and so no adjustment can be made on this basis. However, it is likely the Court will make an adjustment for future needs in favour of the surviving party.
In the case of Hansen & Peel [2023] FedCFamC1F 400, the Court found that the deceased party, the wife, had no future needs factors as she had passed away. An adjustment of 7.5% for future needs was made in favour of the husband who was still alive.
Do the future needs factors of the beneficiaries of the Will come into consideration?
No – in Hansen & Peel [2023] FedCFamC1F 400, the Court found that the future needs of the beneficiaries of the wife’s Will were not a relevant consideration.
Can you make an application for a property settlement after a party has died?
You cannot bring an application for a family law property settlement after a party has died.
If you have not formalised your property settlement and you think you or your former spouse is at risk of passing away, you need to obtain urgent legal advice.
What if both parties die during family law proceedings?
If both parties die during family law proceedings, the proceedings will end. The Court no longer has jurisdiction if both parties pass away.
Can a party stop an Application for Consent Orders from continuing if one party dies?
If parties have filed an Application for Consent Orders, and one party dies, the surviving party cannot withdraw their consent to the Application, thereby preventing the beneficiaries of the deceased from receiving a settlement.
However, once the deceased’s executor seeks an order substituting themselves for the deceased, the parties might consider an alternate settlement that takes into account the changed circumstances or avail themselves of the Court’s discretion to vary the settlement.
In the case of Hullet & Benton (2022) FLC 94-072, the wife withdrew her consent to an Application for Consent Orders after hearing of the husband’s death. The Judicial Registrar dismissed the application as a result of the withdrawal of consent. The executor for the husband’s estate then applied for a review of the Judicial Registrar’s decision. The order dismissing the application was discharged as the primary judge found that the proceedings were not discontinued by the wife withdrawing her consent. The wife tried to appeal the primary judge’s decision. However, leave was not granted as the orders the wife was seeking to discharge were not decisive of the parties’ rights and merely allowed proceedings to continue.
If you are separated (or considering separating) and have concerns about how death could impact your family law settlement, please call us on 03 8672 5222 to make an appointment with one of our experienced family lawyers.
