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The Family Law Act provides a procedure for continuation of Family Law proceedings between a husband and wife (or de facto couples) in circumstances where one of the parties dies prior to the conclusion of the proceedings. The continuation of proceedings means exactly that – there has to be a case in the Court commenced prior to the death. Family Law proceedings cannot be commenced after the death of the husband or wife. It is too late to commence proceedings once the death has occurred.
This position was considered recently in the case of Simonds (deceased) & Coyle. This was a case where the Full Court of the Family Court of Australia had the opportunity to consider Orders made in the Federal Circuit Court of Australia by a Judge of that Court allowing proceedings to be effectively commenced after the death of the husband. The Full Court allowed the Appeal and confirmed that in circumstances where one party to the marriage or de facto relationship had died prior to the commencement of the proceedings by the other party there was no financial cause within the meaning of the Family Law Act that would provide the Court with jurisdiction to hear that Application.
There MAY of course be other remedies in the State Courts and in New South Wales, a Family Provision type Application could be made under the Succession Act 2006 but any such Application under that Act would need to be made within 12 months of the date of the death of the deceased.
In circumstances where proceedings have been commenced in the Family Court of Australia but one of the parties to the proceedings dies then the provisions of Section 79(8) allows the proceedings to be continued by or against the legal personal representative of the deceased party. If the Court is of the opinion:
1. That it would have made an order with respect to property if the deceased had not died; and
2. It is still appropriate to make an Order with respect to property;
3. The Court may make such Orders as it considers appropriate to:
(a) Any property of the parties.
(b) Any vested bankruptcy property.
4. An Order made pursuant to these provisions may be enforced against the Estate of the deceased party.
Watson & Watson are experienced Family Law Solicitors who can provide the right advice in these difficult times. We are able to consider, advise and deal with all circumstances in which you may find yourself relating to your financial/property settlement as a result of the breakdown of your marriage or de facto relationship.
If you are in the process of or about to commence family law proceedings and are faced with the possibility or probability of death of your estranged partner or spouse and are uncertain as what the next steps are or how it will impact your financial/property settlement please call Richard Watson Senior Family Law Solicitor or his assistant Shereen Da Gloria to discuss your concerns and seek the appropriate advice.
This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.
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