Several years ago, I acted for a husband in a family law property matter. He was in his 70s, a senior professional man. The wife was in her 50s. They had one adult child. As sometimes happens, there was not a lot of co-operation from one party, in this case the wife, in pursuing the matter. She was living in the jointly held home. Nothing unusual about this so far. My client, although in good health, was concerned about his future and instructed me to sever the joint tenancy on the home so that he could make provisions for his estate as he chose. I did so. As a result, the wife filed property proceedings.
The husband decided to proceed with an application for divorce. That was heard before he had responded to the wife’s property application. On the day we went to the divorce hearing, he informed me in passing that the wife was returning that evening from an overseas trip. The divorce order was made. On we went.
The next day, I had a number of missed calls from the wife’s lawyer. I then heard from my client. The wife, on her return to Sydney, aged in her mid 50s, suffered some sort of condition upon exiting the plane (possibly deep vein thrombosis) and died.
And so we found ourselves in the position with which this paper is concerned: the impact of (the wife’s) death on the property proceedings (initiated by her).
Read our paper, “The Impact of Death On Family Law Proceedings” (pdf, 563kb)
What Happens When One Party Dies During Family Law Processings?
The death of a party to family law proceedings can significantly complicate matters. In a case from 1981, Sims, the Full Court of the Family Court of Australia determined that the court did not have the power to continue proceedings after the death of a party by substituting that party’s personal representative.
In 1983, the Family Law Act was amended to address this issue. Sections 79(8) and 90SM(8) of the Act now provide that in property settlement proceedings, if a party to the marriage or de facto relationship dies before the proceedings are completed, the proceedings may be continued by or against the legal personal representative of the deceased party. The legal personal representative is generally the executor or administrator of the deceased party’s estate.
Rule 6.15 of the Family Law Rules also deals with this issue, stating that if a party dies, the other party or the legal personal representative must ask the court for procedural orders in relation to the future conduct of the case. The court may order that the legal personal representative of the deceased person be substituted for the deceased person as a party.
Preliminary Principles
The following preliminary principles should be noted:
- Proceedings cannot be commenced after the death of a spouse. The proceedings must have been commenced before the death of one of the spouses. If the parties have separated, but proceedings have not yet been commenced before the death of one of them, the surviving spouse may make an application for provision from the deceased’s estate.
- If both parties die before final orders are made in the proceedings, then the proceedings will not continue.
Application of s79(8)
Once the legal personal representative has been substituted and the proceedings are continuing, the court must undertake a 2-step analysis:
- Would the court have made an order with respect to property if the party had not died?
- Is it still appropriate to make an order?
Relevant factors the court may consider include contributions made by the survivor, the future maintenance needs of the children and the surviving spouse, and the conduct of the parties during the proceedings.
In Practice
In Meddow, the parties had been in a relationship for 16 years and had young twin children. The wife was diagnosed with breast cancer and proceedings were commenced by the husband. The wife’s health deteriorated and she died. The children went to live with the husband and his new partner. The wife’s parents were the executors of her estate and were substituted for her in the proceedings.
The case highlighted the issue of evidence. In this case, the wife had filed affidavit evidence and had been available for cross-examination. In other cases, gathering evidence may be difficult if an affidavit as to the party’s contributions and other relevant matters has not been prepared prior to the death of that party.
The case also dealt with the issue of whether the Court could make a superannuation splitting order in favour of the wife’s estate. The husband’s superannuation was found to be property for the purposes of s79(8) and included in the pool of property available for division.
When s79(8) Does Not Apply
If, after separation, one party dies before proceedings have been commenced, property settlement proceedings are no longer an available option. Instead, the surviving spouse must turn to the family provision legislation relevant to him or her.
Each state has its own definition of an eligible person or the class of persons who can make a claim for family provision.
In Summary
Timing is critical in family law proceedings, as property settlements must be initiated before a party’s death for the court to consider continuing them. The legal process can be complex, often requiring involvement in both family law and estate law proceedings.
If property proceedings were never commenced, the surviving spouse may need to rely on a family provision claim instead.
Understanding these legal nuances is essential to ensuring fair outcomes, and seeking expert legal advice can help navigate the complexities of family and estate law.
If you are in need of legal guidance in relation to a family law or estate law matter, contact our experienced Sydney family law firm for a confidential discussion.