In the unfortunate event that a party to Federal Circuit and Family Court proceedings passes away prior to the proceedings being finalised it often begs the question ‘what now?’. How do we ensure that the deceased parties’ interests are advocated for?
Section 79(8) of the Family Law Act 1975 provides that the proceedings can be continued by the legal personal representative of the deceased party. Section 79(8) provides for the creation of a new class of rights, which are only created if the proceedings are continued by or against the legal personal representative of the deceased spouse.
The appointment of a legal personal representative is determined by the deceased’s Will, a grant of probate, letters of administration, or an order of the Supreme Court.
The Court will only allow for the substitution of a representative in the following circumstances:
- if it would have madean order with respect to property if the deceased party had not died; and
- if it is still appropriate to make an order with respect to property;
As a result, it is not automatically guaranteed that proceedings will continue – the Court will need to make an assessment of whether an order would have been made but for the death as well.
If a representative is substituted into the family law proceedings, and orders dealing with property are made, any such order made may then be enforced on behalf of, or against, as the case may be, the estate of the deceased party. This also means that any property allocated as part of the proceeding will then be either added to or taken from the deceased person’s estate.
If however proceedings have not been commenced in the Federal Circuit and Family Court prior to death, there are limited (and usually, no) avenues left available for the deceased estate to recover against a former spouse or partner of the deceased – it is critical to take early and informed family law advice if someone going through a separation is at risk of death, has a serious illness, or is due to undergo significant surgery, as the impact on that person’s rights may be significant.
If you require advice regarding this topic or are seeking further information about your family law entitlements please contact our experienced team on (03) 9614 7111.