By Emma Nisbet
Family Law matters are often complex and emotionally charged proceedings. One of the more complex factors in family law proceedings, and one which is often overlooked, is the impact that the death of a party may have on proceedings and the corollary matters which will need to be addressed if this occurs.
What Happens to Property Settlement Proceedings When a Party Dies?
In Family law, property settlement is a crucial process that determines how assets and liabilities are divided following the breakdown of a marriage or de facto relationship. But what happens if one party passes away before the proceedings are completed? The law does provide a mechanism to ensure property matters can still be finalised, even in such unfortunate circumstances.
Authority of a Legal Personal Representative
If a party dies during ongoing property settlement proceedings, the Family Court may permit a legal personal representative—such as the executor of a will or an appointed administrator—to continue the matter on behalf of the deceased.
The Court must be satisfied that:
- It would have made a property order if the deceased were still alive; and
- It remains appropriate to make such an order, despite the death.
If these criteria are met, the Court can substitute the legal personal representative into the proceedings, and any resulting order becomes enforceable against the deceased’s estate.
Application in De Facto Relationships
The same principles apply to de facto relationships under section 90SM(8) of the Family Law Act. However, for such proceedings to continue, the relationship must have already broken down prior to the death. Like in marriage, the legal representative can step in, and the Court can still make binding and enforceable orders regarding property or even bankruptcy-related matters.
Appointment and Substitution
While the law does not strictly require a grant of probate before substitution, the courts have shown some flexibility. As long as no one disputes the legal personal representative’s authority, courts may allow their involvement prior to a formal grant. However, where needed, proceedings can be adjourned to allow for the grant to be obtained.
Ability of the Court to deal with the proceedings
The Court’s ability to deal with the proceedings only extends to proceedings that were already underway at the time of death. If no application had been made before the party’s death, then the Court lacks the authority to hear the matter. In those cases, disputes over property or provision from the estate may need to be resolved through the relevant succession law provisions.
Is It Just and Equitable?
Before making an order, the Court must be satisfied that doing so is “just and equitable.” This principle was highlighted in the High Court decision of Stanford v Stanford, where it was emphasised that decisions must be based on legal considerations—not moral obligations. The Court must also assess whether the property order remains appropriate after the death, considering all relevant circumstances including the conduct of the parties and the nature of the estate.
Final Thought
The death of a party does not always mean the end of property proceedings. But it does introduce legal complexity. Substitution of a legal personal representative, the timing of the proceedings, and the requirement that any order be just and equitable all play crucial roles. Understanding these principles ensures the proper administration of justice and fair treatment for all parties involved—even after death.
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