Family law matters can be difficult and complex to navigate at the best of times, however, this is particularly so when one party dies before the matter is finalised. The timing of the death plays a crucial role in determining the next steps.
If the party dies before Court proceedings are commenced for property settlement, the matter cannot then be commenced as originally intended in the Federal Circuit and Family Court of Australia. Instead, the surviving spouse may need to consider their entitlements to make a claim against the deceased’s estate and any entitlement that might arise under a valid Will.
If a party dies after Court proceedings are commenced for property settlement but before they have concluded, the matter may still continue through that Court, however, how this occurs will depend on the specific circumstances of the parties.
In this case, the Court will need to consider whether the matter should proceed at all, and if so, who should be appointed to act on behalf of the deceased party as their Legal Personal Representative. Often, this may be the executor appointed pursuant to a Will, but may be an unrelated third party in some cases.
The death of a party may have a significant impact on the surviving party’s entitlement to any division of property under the Family Law Act and, in either case, it is important to get legal advice at the earliest possible time.
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