Pub­li­ca­tions

Death and fam­i­ly law prop­er­ty proceedings

If you and your for­mer part­ner are unable to agree to the terms of a prop­er­ty set­tle­ment, one of you will have to apply to the court for prop­er­ty set­tle­ment orders. Lit­i­gat­ing fam­i­ly law pro­ceed­ings can be a lengthy exer­cise, but what hap­pens if pro­ceed­ings have been com­menced and then a par­ty to the pro­ceed­ings dies?

Prop­er­ty set­tle­ment pro­ceed­ings after death of a party

Sec­tions 79(8) and 90SM(8) of the Fam­i­ly Law Act pro­vide that where a par­ty to prop­er­ty pro­ceed­ings dies pri­or to the pro­ceed­ings being finalised, the pro­ceed­ings may be con­tin­ued by or against the legal per­son­al rep­re­sen­ta­tive of the deceased. The legal per­son­al rep­re­sen­ta­tive is gen­er­al­ly the execu­tor of the estate, and is often a fam­i­ly member. 

it is impor­tant to note that fam­i­ly law pro­ceed­ings must be com­menced whilst both par­ties are alive. If one spouse dies before Court pro­ceed­ings are com­menced, then dis­tri­b­u­tion of prop­er­ty will be gov­erned by the deceased’s will, and/​or the Suc­ces­sion Act in the rel­e­vant state or territory. 

Spouse main­te­nance pro­ceed­ings after the death of a party

Spousal main­te­nance refers to the pro­vi­sion of finan­cial sup­port (some­times called alimo­ny) by one spouse or par­ty to a rela­tion­ship to the oth­er spouse or par­ty to a rela­tion­ship where the sup­port­ed spouse par­ty is unable to ade­quate­ly sup­port them­selves. A right to spouse main­te­nance is gov­erned by 72(1) of the Fam­i­ly Law Act 1975 (Cth).

So what hap­pens if you have made a claim through the Court for spouse main­te­nance and your ex-part­ner dies? If either par­ty to main­te­nance pro­ceed­ings pass­es away, sec­tions 82 and 90SJ of the Fam­i­ly Law Act 1975 (Cth) pro­vide that the pro­ceed­ings can­not continue. 

In short, spouse main­te­nance is only payable so long as both par­ties are alive. 

Death and time of fil­ing proceedings

The recent Full Court deci­sion of Frost (Deceased) & Whooten con­sid­ers the posi­tion when a par­ty attempt­ed to elec­tron­i­cal­ly ini­ti­ate pro­ceed­ings after the fil­ing reg­istry was closed, but a few hours before the oth­er par­ty died. The par­ties in this case were mar­ried but had sep­a­rat­ed. Mr Frost was tak­en to hos­pi­tal after suf­fer­ing a seri­ous injury and died in hos­pi­tal at 11:00 pm the fol­low­ing day. Ms Whooten had uploaded a Fam­i­ly Court Ini­ti­at­ing Appli­ca­tion to the online court fil­ing sys­tem, the Com­mon­wealth Courts Por­tal, at 7:40 pm on the day Mr Frost died. 

Rule 24.05(2) of the Fam­i­ly Law Rules pro­vides that the appli­ca­tion was tak­en to have been received for fil­ing with the reg­istry the next day that the reg­istry is open, which was the day after the deceased’s death. In prac­tice, this means that doc­u­ments which are filed elec­tron­i­cal­ly after 4:30 pm, are tak­en to have been filed on the next busi­ness day. 

Mr Frost’s estate / legal per­son­al rep­re­sen­ta­tive appealed the deci­sion of the tri­al judge deem­ing the Ini­ti­at­ing Appli­ca­tion to have been filed at the time it was elec­tron­i­cal­ly received by the Court. The appeal suc­ceed­ed, with the Court say­ing that it did not have juris­dic­tion to hear Ms Whooten’s prop­er­ty set­tle­ment appli­ca­tion where pro­ceed­ings had not been insti­tut­ed accord­ing to the Fam­i­ly Law Rules.

This case high­lights the need to know the tech­ni­cal aspects of fam­i­ly law prac­tice, along with the inter­pre­ta­tion of the Fam­i­ly Law Rules. If your case involves a deceased estate, or may poten­tial­ly involve a deceased estate, our Accred­it­ed Spe­cial­ists in Fam­i­ly Law are able to assist you.