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. 

For further information please contact:

Monique Robb, Senior Associate
Phone: + 61 2 9233 5544
Email: mcr@swaab.com.au

Katerina Lonergan, Solicitor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.