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Death in a Family Law Matter

We all know that we really ought to get things resolved as soon as we can – and there’s about a million ‘time management’ books and self-anointed gurus that tell us to ‘do it now’ – but human nature is what it is.

Despite the best will in the world sometimes things take longer than expected. It’s no different with things legal. And that includes Family Law cases.

Sometimes Family Law property cases drag on much longer than expected. There may be complications that take a long time to unravel, expert reports may be needed, sometimes health issues arise. Whatever the cause for the delay, the one great certainty of life is its uncertainty.

What happens if a party to a Family Law property case dies?

Well the first point to note is that if a case hasn’t been started before someone dies then it can’t begin after death. The right to bring a legal proceeding under the Family Law Act expires with you. In that case the law of succession will determine the property interests of the deceased. If you’d rather the government have less of a say than you in dealing with your assets after death then making a Will would be the the appropriate course.

However if court proceedings have been started but not finished and one of the parties dies then it is possible for the court to carry on with the case and to make a final decision. The factors that need to be taken into account are similar as if both parties were still alive but with some necessary adjustment for the changed circumstances.

It will not automatically follow that just because a case has started it will have to finish. The attitude of the surviving party and the legal representative of the deceased will play a key role in deciding if the case should proceed. If you find yourself in a situation of having to decide what to do in such circumstances you should get professional legal advice as soon as possible to help you decide the best thing to do in your case. No two sets of circumstances are identical.

What steps must a court follow in deciding property applications?

  1. In deciding any property adjustment application the first question a court will have to decide is whether there should be any property adjustment at all? Would it be ‘just and equitable’ to alter property interests?
  2. If so, then, as a starting point, the property of the parties (including that in an estate) need to be identified and values agreed or obtained from experts. Orders taking effect on property need to be able to specify what property is to be dealt with and how.
  3. The next step is for the contributions of both parties, in financial and non-financial terms, to be weighed up. Who contributed what money? Who earned during the relationship? Who owned property at the outset? What about gifts and inheritances? Who expended what effort and energy and on what? Who looked after the home? Who took care of the chores? Who raised children or cared for family members? The relevant contributions are as variable as relationships themselves.
  4. The next consideration will be rather different where one party has died. Under the Family Law Act a court asked to make a property adjustment order must have regard to the needs and circumstances of the parties by reference to the legislation that lists a number of considerations including age, health, earning capacity and so on.  Fairly clearly, an individual’s post mortem needs are unlikely to be what they once were. Nonetheless an estate could have the need for financial resources in order to put into effect the terms of a will or to meet obligations.
  5. And finally a court must again consider if the desired outcome of a party (or their representative in the case of a deceased party) is just and equitable, and if not, what is.


What should you do if a possible party to your Family Law case is seriously ill?

We recommend you get professional legal advice as soon as you become aware of a potentially terminal condition or the death of a party to a Family Law case. Indeed if you are contemplating commencing proceedings and you become aware of the possible imminent demise of a party you should take urgent steps to seek that advice and act on it very quickly. Failure to file proceedings before death can spell the end of a Family Law case before it has even begun.


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If the contents of this article are relevant to your circumstances it may assist you to obtain legal advice. Call us on 07 5597 3366 today to arrange a initial consultation to discuss your concerns with a Family Lawyer.

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For more information on this topic please contact Margaret Miller, Partner and Family Lawyer. This article has been prepared by Bell Legal Group for general information purposes only. It is not legal advice and should not be relied upon as such.