When one party of a breakdown relationship is terminally ill, it can have significant implications to the distribution of their property, if the party passes away. Whilst a morbid and uncomfortable topic, it is an extremely important one to consider, as it can have serious consequences on a party’s assets, and how they are dealt with after a party’s death.
Death prior to commencing proceedings
Where neither party has commenced court proceedings in the Family Law jurisdiction, the matter will be dealt with under the estate law of the applicable state or territory of Australia. This might mean that if the terminally ill party did not update their will after separation, their former spouse (if provided for in the deceased’s will) may inherit from their estate. This may or may not be the intention of the deceased party.
Seeking legal advice becomes even more pertinent in family law matters when one party is terminally ill. Generally most parties will attempt to resolve their matter outside of the Court system, through independent negotiation and sometimes formal mediation. These pre-action procedures still apply despite the ill-health of a party.
However, if the matter is unable to be resolved through these means, sometimes the only alternative course of action is to make an application to the Federal Circuit and Family Court of Australia to resolve the matter.
Death after commencing proceedings
So, what happens when a party dies prior to a matter being resolved, but after filing an application? Where proceedings have commenced in the Family Law jurisdiction, and a party dies, Section 79(8) of the Family Law Act 1975 (Cth) and Rule 3.19 of the Family Law Rules 2021 apply. The Court may allow for the substitution of the deceased party by their legal personal representative - usually the executor of their estate, or another appropriate party - to ensure the legal proceedings can continue.
The personal legal representative will usually engage in Family Law proceedings with the view of recovering the deceased’s share of the matrimonial property pool for distribution according to their will. However, it is important to remember that the Orders that the Court will ultimately make are likely to be significantly different to the Orders the Court would have made if the party had not died. One example of how such a difference in outcome occurs is that the Court cannot consider the future needs of a party if they have passed away.
Family law and the death of a party can be complex and nuanced. In the event you are faced with this circumstance, you should obtain specialist family law advice. Contact Robinson + McGuinness to arrange an appointment on 02 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Lauran Clifton