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What Happens After the Death of a Party?

Written by Bruce Heathershaw

Bruce Heathershaw has been practicing law for over 30 years and is an Accredited Family Law Specialist. He holds a Bachelor of Arts and a Bachelor of Laws and is admitted to practice in the Supreme Court of Victoria, the Supreme Court of Western Australia and in the High Court of Australia. Bruce practised in Victoria for many years and in 2002, was appointed head of the family law department of a medium sized Melbourne firm. Bruce moved to Western Australia in 2005 where he has continued to practise almost exclusively in family law, appearing regularly in the Family Court.

An issue which can arise after separation is what happens in the event of the death of a party to the relationship before there is a final distribution of property, either by agreement or by court order.  If neither party has commenced legal proceedings and one party dies, the law to be applied will be that applicable to deceased estates. It will not be possible for the surviving spouse or partner to commence proceedings in the Family Court or Federal Circuit Court.

How will the court provide for the surviving party?

The family provision or testator’s family maintenance laws of the state or territory will enable a court to make provision from the estate of the deceased for the maintenance, education or advancement of the surviving party if a court finds that inadequate provision was made for them from the estate or during the life of the deceased.

What is family law proceedings have already commenced?

Where family law proceedings have commenced prior to the death of a party, the proceedings may be continued between the surviving spouse and the estate of the deceased. This is possible for parties who were married by virtue of section 79(8) of the Family Law Act and in the case of de facto partners, by virtue of section 90SM (8) of that Act. For de facto partners in Western Australia, the relevant provision is Section 205ZG (8) of the Family Court Act.

If both parties die after legal proceedings have commenced, it is not possible to continue the proceedings.

Who will continue the proceedings?

The legal personal representative of the estate, being the executor appointed under the terms of the will of the deceased, or the administrator, will continue the proceedings on behalf of the estate of the deceased.

The Family Court proceedings will be suspended upon the death of a party until the legal personal representative is substituted as a party. Rule 6.15 of the Family Law Rules provides that the legal personal representative or the other party must ask the court for procedural orders in relation to the future conduct of the proceedings.

Section 79(8) provides that where the court considers it is still appropriate to make an order with respect to property the court may make such orders as it considers appropriate. This involves an exercise of the court’s discretion.

Neubert v Neubert

In the 2017 decision of Neubert (Deceased) & Neubert and Anor, the Family Court considered the principles to apply in determining the appropriate distribution of property. In that case, the parties had separated after a relationship of almost 19 years. The wife had commenced property proceedings in the Federal Circuit Court.  In 2015, the wife was driving through Hobart with her friend, the intervener in the proceedings. The husband, armed with a shortened firearm, saw the wife’s car and forced her to stop. He then shot the wife dead.  He also shot the wife’s friend, causing permanent and significant injury to her.

The friend later obtained a judgment for damages against the husband in the Supreme Court of Tasmania. The judgment included interest and costs, totalled $2,567,746.26 by the time of the Family Court trial.  The friend later intervened in the proceedings between the husband and the estate of the wife. These proceedings were finalised in the Family Court.

Court has a discretion following the death of a party

In Neubert v Neubert, the Family Court acknowledged that it had a discretion to permit the continuation of the proceedings following the death of a party and that this should be undertaken in limited circumstances and should not be exercised lightly. Section 79(8)(b) provides that the discretion is to be exercised where

  • it would have made an order if the deceased party had not died and
  • it is still appropriate to make an order with respect to property.

When deciding whether to exercise its discretion, the court will have regard to the property of the parties and their respective contributions. The court found that the husband made significant initial contributions. However, the court also found, having regard to the time the parties lived together and the significant contributions made by the wife, that the wife would have benefited from a significant adjustment of the assets and that an order would have been made in her favour.

The court further found that it was still appropriate to make an order. The court acknowledged that no section 75(2) factors could apply to the wife given that she was deceased. There were no section 75(2) factors relevant to the husband either given his circumstances and that it would be offensive to justice and equity to give him the benefit of those factors given that he had murdered the wife.

However, given the wife’s significant direct and indirect contributions of a financial and non-financial kind to the acquisition, conservation and improvement of the property and to the welfare of the family, the court found that it was still appropriate to make property orders.

Having considered all the relevant factors, the court was satisfied that an order should be made and determined that the property ought to be adjusted 65% to the husband and 35% to the wife, with the husband’s entitlement to be paid towards the damages due to the intervenor.

This case is a good example of how the discretion to make property orders can be applied after the death of a party after family law proceedings have commenced.

If you require legal advice or representation in a family law matter or in any other legal matter, please contact Go To Court Lawyers.

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