Divorce and separation are a matter of Federal law, however, death falls under state law, so when a partner dies, the family law courts do not have the jurisdiction for a property settlement. The general rule established in Sims v Sims, is that a property settlement cannot be made, unless at the time of death, the court proceedings for a family law property matter had already commenced. If no court proceedings have been commenced, the surviving partner will only receive the assets they have a legal interest in, or assets provided for in the Will of the deceased.






Death after commencement of a family court proceeding


Section 79(8) of the Family Law Act allows a settlement of property case to continue after the death of one party to the marriage by the substitution of the deceased’s legal personal representative. Similarly, section 90SM(8) of the Family Law Act applies to de facto couples. Rule 6.15 of the Family Law Rules states that the deceased’s legal personal representative must ask the court for procedural orders in relation to the conduct of the case.

In Neubert v Neubert, the court determined that the family court will have the discretion to permit the continuation of the proceedings following the death of the party, and this shall only be undertaken in limited circumstances and should not be exercised lightly.

The High Court in Stanford v Stanford confirmed that when the court is determining whether property proceedings should continue after the death of a party, they must consider whether had the party not died, it would have been just and equitable to make an order and whether, the party having died, it is still just and equitable to make property division orders. Some factors that may be considered by the court when making property division orders are whether there is any consequence of the death of the party on the financial position of the surviving party, and the fact that the deceased no longer has any continuing maintenance needs for themselves after death.





Seek Advice


It is best to seek immediate legal advice regarding property settlement as soon as you become separated from your partner. This becomes even more pertinent if your partner is terminally ill and their death is a possibility within the years following your separation. Your lawyer will likely hurry to lodge an application for the property settlement in the Family Court so that in the event of their death before finalisation of the matter, there is the opportunity to continue the proceedings against the deceased’s estate. However, this may not be the best option as there may be a better claim to property under the deceased’s Will, so these factors would need to be considered by your lawyer.




Nicola Maltman – Law Clerk – Matthies Lawyers

Should you have any queries in regard to family law property settlement matters, please contact Matthies Lawyers for an obligation free consultation or call +61 3 8692 2517 today.

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.