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What if your ex dies during family law proceedings?

By August 26, 2020February 23rd, 2024No Comments

What if your ex dies during family law proceedings? It’s never a pleasant thing to contemplate, but the death of you or your spouse is something that should be considered when it comes to family law proceedings given the potential ramifications. So let’s have a look at the issues.

A recent case in the Family Court highlights the issue of death and family law, with a de facto husband seeking orders for a property adjustment but dying before final orders were able to be made by the court. The matter of Campion & Gene (court-ordered pseudonyms) had been a complex parenting matter but the current proceedings related only to the property adjustment issue. The property proceedings continued with a legal representative in the deceased husband’s place.

However, when the man died, his “parenting proceedings came to an end and no determination by the court was required”. Does this mean that the surviving parent automatically always “wins” their family court matter? In fact, it does not. But first let’s take a look at the property side of the equation.

Property matters when ex dies during family law proceedings

The relevant sections of the Family Law Act 1975 are section 79(8) for married couples and s90SM(8) for de facto couples. These sections deals with what happens if a party dies during property settlement proceedings.

The courts are not required to make orders, but are required to consider applications for a property settlement order continued by or against a legal personal representative of a deceased party. At their discretion, the courts can consider whether they would have made an order regarding the property if the deceased had not died and whether despite the deceased passing away, the order would still be appropriate, just and equitable to make.

If allowed, the case can be continued by the legal personal representative of the deceased, and orders made by the court can be enforced on behalf of or against the estate of the deceased. The legal personal representative of the deceased takes over responsibility for instructing solicitors, paying legal costs and complying with any orders of the court. While there is no definition of “legal personal representative” in the Family Law Act 1975, this is typically the executor or administrator of the deceased’s Will. Until such a representative is substituted as a party to the proceedings, the proceedings effectively remain suspended.

To avoid a situation where the deceased’s legal personal representative is actually the surviving spouse, it’s important that Wills are updated upon divorce. If a deceased party did not update their will after divorce, and their Will contained a clause which gives the effect that the Will is not to be revoked on divorce, then the surviving spouse may remain the nominated executor of the deceased’s estate. It’s therefore of utmost importance to update your Will upon separation and divorce.

Do proceedings simply continue as if the deceased were still alive?

Yes. However, what’s very important to note is that the death of the spouse can absolutely affect the course of proceedings and alter the outcome of the property settlement. For example, the fact that a surviving spouse may now have more onerous and more extensive care obligations towards any children of the couple. In the case mentioned above, a property adjustment was ultimately deemed suitable because the mother “now bears the full responsibility for the financial and emotional care of the three children who are still young with many years of care and schooling before them”.

Now let’s look at the issues surrounding parenting matters when a parent dies.

Parenting matters if a parent dies

Obviously if parenting orders exist that required children to spend time with a parent, and that parent passes away, that parenting order will become null and void. However, unless parenting orders specify what must happen if a parent dies, the surviving parent does not simply become entitled to full custody of the child.

Usually, the scenario is that the surviving parent will want the child to live with them.  This may, however, not always be in the child’s best interests.  There may also be other individuals, such as a step-parent or a grandparent, who have been more involved with the child’s care and express an interest in the care, welfare and development of the child.  In such cases they may well seek to have the child spend time with them.

Sometimes, all relevant parties can come to an agreement over the child’s living arrangements without the intervention of the family law courts. But where there is a disagreement, the surviving parent or other relevant individual can apply to the court for the court to determine with whom the child should live and who should have parental responsibility going forward. 

Even when parties can come to an informal agreement over the child’s living arrangements, having such agreement formalised by consent orders is usually a good idea.  For example, schools, health professionals and government departments often need a formal record of the agreement.

Terminally ill parents

When a parent is aware they are terminally ill, they may consider entering an application or an agreement with relevant other parties before they pass away, for certainty and peace of mind. 

Parents (whether ill or not) may also choose to appoint someone to be guardian of their child in the event of their death in their Will.  However, this is not legally binding under family law and is only taken as an expression of the deceased parent’s wishes.

Having said that, while the family law courts makes the final decision regarding the appointment of a guardian, Wills are nevertheless respected legal documents and, provided the Will is valid, the wishes you have set out in it would still be considered by the family law courts.  As such, many parents do consider appointing a guardian to alleviate concerns over what will happen in the event of their death.

The legal issues around death and family law are complex and it’s important to seek legal advice to protect your interests. For help, please contact Canberra family lawyer Cristina Huesch or one of our other solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

You may also like to read our blog on what happens to your digital assets if you die or are incapacitated.


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