What happens in family law proceedings, when a former spouse or partner unexpectedly dies before the parties have reached a final resolution?

Nothing in life (or death) is simple; and unexpected events such as the death of a former spouse or partner can add layers of complexity to the already challenging process of navigating family court proceedings. So, what happens if a former spouse or partner dies before the parties have reached a final resolution in respect of their family law matter?

For married and de facto couples, the Family Court has the power to continue proceedings, after the death of a party, by the deceased’s legal personal representative standing in the shoes of the deceased. Although the legislation does not define ‘legal personal representative’, they are usually the executor or administrator of the deceased party’s estate. After the death of a party, the Court proceedings are in effect suspended until an order is made to substitute the legal personal representative as a party to the proceedings. A case does not have to be continued after the death of a party. It depends upon whether either the surviving spouse or the deceased’s legal personal representative wishes to continue the proceedings.[1]

To continue family law proceedings, by or against the legal personal representative of the deceased party, certain requirements must be met. The Court must be satisfied that it would have made an order with respect to property if the deceased had not died, and that it is still appropriate to make an order with respect to property.[2]

As confirmed by the High Court in Stanford v Stanford,[3] there is a two-step test.

The Family Court must consider whether, had the party not died, it would have been just and equitable to make an order for property settlement; and whether, the party having died, it is still just and equitable to make an order. The case of Neubert v Neubert [4] is an example where the Family Court considered an unusual set of circumstances and made orders for the continuation of family law proceedings.

In this case, the wife had initiated property proceedings against the husband. During the proceedings, the wife was murdered by the husband. The wife’s legal personal representatives sought to intervene, and the Family Court made orders permitting the continuation of the proceedings.

The Trial Judge found that at the date of the wife’s death, the Court would have made an order in her favour in light of the parties’ respective contributions to the property of the marriage.

His Honour assessed contributions as 35 per cent to the late wife and 65 percent to the husband. In considering whether an adjustment for future needs under section 75(2) was warranted, his Honour found that “the husband, having murdered the late wife, cannot have the benefit of the section 75(2) factors”[5] and “to do so would be offensive to justice and equity.”[6] Ultimately, the decision of the Family Court is discretionary, and will be based on the individual circumstances of each case.

Although, property proceedings may be continued by, or against, the personal representative of the deceased, the Court is likely to make different orders than it would have if the party had not died. For example, the Court does not need to consider whether an adjustment for ‘future needs’ is necessary for the deceased party.[7]

Ultimately, if property settlement orders are made by the Family Court, they are enforceable by or against the deceased party’s estate.[8]

The Family Court, however, does not have jurisdiction to make orders for property settlement if proceedings were not commenced prior to the former spouse or partner’s death. This means that the surviving partner will only receive the assets they have a legal interest in, or the assets provided for in the Will of the deceased. The surviving spouse is limited to bringing a claim against the estate under the relevant state legislation.[9]

If a party is seeking an alteration of property interests in the event of the breakdown of a relationship (or in the event of ‘involuntary separation’ where one party loses capacity and is moved to an aged care facility) and it appears that death may be imminent, it is important to seek legal advice as soon as possible. Unlike the position for orders to alter the property interests of the parties, spousal or de facto maintenance proceedings cannot be continued following the death of a former spouse or partner. Spousal maintenance ceases upon the death of the recipient or the payer.

Thanks to Emily Byrne (solicitor) for her contribution to this article.

This article first appeared in the January – February 2024 edition of Medicus Journal. Medicus Journal is the AMA (WA)’s award-winning journal distributed bimonthly to more than 4,000 doctors and decision-makers throughout Western Australia.  The Australian Medical Association (AMA) is the peak professional body for doctors in Australia.

[1] Strelys v Strelys (1987) FLC 91-82.

[2] Family Law Act 1975 (Cth) (the Act), section 79(8)(b).

[3] [2012] HCA 15.

[4] Neubert (Deceased) & Neubert and Anor (No.2)[2017] FamCA 829.

[5] Neubert (Deceased) & Neubert and Anor (No.2)[2017] FamCA 829 at [182].

[6] Neubert (Deceased) & Neubert and Anor (No.2)[2017] FamCA 829 at [179].

[7] Neubert (Deceased) & Neubert and Anor (No.2)[2017] FamCA 829 at [175]; Van der Linden & Kordell [2010] FamCAFC 15 at [83].

[8] Section 79(8)(c).

[9] For Western Australia, see Family Provision Act 1972 (WA).