When Estate Law And Family Law Converge

There are some cases in family law proceedings where the two areas of law (estate law and family law) converge.

The effect of Death on a Family Law Property Division

If proceedings have not begun when a party dies

If after parties separate, a spouse dies, but neither party has begun family law proceedings in the Federal Circuit and Family Court of Australia (The Family Court), then Family Law property proceedings cannot be commenced.  That is, the Family Court only has jurisdiction to commence proceedings where both spouse parties are alive.   In that situation, the surviving spouse may be able however to make a claim against the deceased spouse’s property in the Supreme Court through the State Law, in NSW, being the Succession Act 2006. 

Each state and territory has an equivalent Act that allows a court to order that provision be made out of a deceased estate for the “proper maintenance, education or advancement in life” of a family member if inadequate provision was made from the estate or during the life of the person who died.

In deciding an application for family provision, the Supreme Court may consider factors such as:

• the nature and duration of the relationship with the deceased person;
• the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant;
• the nature and extent of the deceased person’s estate, and any contribution made by the applicant to it;
• the financial resources and needs, current and future, of the applicant;
• any physical or intellectual disability of the applicant;
• the character and conduct of the applicant before and after the death of the deceased person;
• whether any other person is liable to support the applicant.

Where proceedings have commenced before a party dies

Property settlement

When there are already Family Law property proceedings on foot, and a party to those proceedings dies, the proceedings may be continued by, or against, the personal representative of the deceased person (usually the executor of their estate) appointed under their Will.

However, the orders which the Court ultimately makes may be quite different to the orders the Court would have made if the party had not died.

Maintenance

Spousal maintenance and de facto maintenance proceedings cannot be continued against a dead person.

Existing maintenance orders stop when a party dies. This means that:

• if you are required by an order to pay maintenance, and the person receiving the maintenance dies, you do not need to pay maintenance to their estate, and
• if you receive maintenance under an order, and the person paying the maintenance dies, you will not receive maintenance from their estate.

Parenting Proceedings

In parenting proceedings, if a party dies, unless parenting orders have specified what must happen, the surviving parent does not automatically obtain full custody of the child. Where there are other parties, such as a step-parent or grandparent, who want to be involved in the care, welfare and development of the child, an agreement may be reached between all the parties. If there is disagreement, a party can apply to the Family Court to determine who should have parental responsibility for the child.

As can be seen, it is important when discussing Family Law issues with your lawyer that careful consideration also be given to your Will and Estate matters.

An example of this article can be found in the article entitled A Case Study-Death in Family Law. 

Has this article created any concerns for you regarding your Family Law matter?  To discuss this further please contact Solari and Stock on 8525 2700 or click here to request your free 30-minute consultation with one our experienced Family Law Team.  Alternatively you can start your Family Law enquiry or Wills and Estates enquiry on line. By completing this information it provides our Solicitors all the information they need upfront before your first discussion and makes the process faster and more cost effective for you.

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Article written by Nikita Ward
Photo by Ante Hamersmit on Unsplash