Until Death Do Us Part – Implications of Death for Family Law Matters

Part 1: Authority for a Legal Personal Representative to Act and Who is a Legal Personal Representative?

Emma Nisbet, March 2019

Family Law matters usually involve many complexities and are often emotionally charged proceedings. However, often little consideration is given to the impact that the death of a party may have on proceedings and matters that will need to be addressed if this occurs.

If a party to a marriage dies prior to the completion of property settlement proceedings, the Family Court may enable the legal personal representative of the deceased party to ‘step into the shoes’ of the deceased for the purpose of the property settlement proceedings being completed.[1]

Where property settlement proceedings are on foot then it is necessary, in most instances, for these matters to be determined before the administration of the deceased person’s estate can be finalised (given assets and liabilities of the estate need to be ascertained for the estate to be administered).

The Family Court will generally allow the legal personal representative to be substituted in the proceedings for the deceased if the Court is of the opinion:

(a) it would have made an order with respect to property if the deceased party had not died; and
(b) notwithstanding the death of a party that it is still appropriate to make an order with respect to property.[2]

If the Court does make an order, the order is enforceable against the estate of the deceased.[3]

The ability for a legal personal representative to be substituted as a party to property proceedings involving a de facto relationship mirrors that of section 79(8)[4] involving proceedings of parties to a marriage. There is a difference, however, in that a breakdown of the de facto relationship must have occurred for proceedings to have been commenced.

1.1 Who is a legal personal representative?

The Family Law Act does not define the term legal personal representative, however, it is generally recognised that a legal personal representative is:

(a) the executor of a deceased person’s will; or
(b) the administrator of a deceased person’s estate.[5]

This position was confirmed in the decision of Cullen v Cullen[6] where the Court considered the Explanatory Guide to the Family Law Rules 2004 (Cth) and the Superannuation Industry (Supervision) Act 1993 (“Cth”) in determining the meaning of a legal personal representative.

1.2 Jurisdiction of the Family Court to determine the matter

The key issue for determining the jurisdiction of the Court to act is whether the proceedings were commenced prior to the death of a party, or finalised prior to the death of both parties to the proceedings.

In circumstances where property settlement proceedings were not commenced prior to the death of a party to the marriage, the Court will not have jurisdiction to determine the matter. Furthermore, the Court’s jurisdiction will cease if the surviving party to the proceedings dies.[7] The reason being, is that such proceedings are a personal right, and, accordingly, do not survive death (where the proceedings have not been instituted) or cease on the death of the surviving party and as such the right does not pass to an executor of an estate in these situations.[8] In circumstances where the assets are not, or cease to be subject to property proceedings, the assets will then be dealt with pursuant to the will of the relevant party, or where there is no will, the relevant legislation governing intestate estates.

  1. Family Law Act 1975 (Cth), s 79(8)(a).
  2. Ibid s 79(8)(b).
  3. Ibid s 79(8)(c).
  4. Ibid.
  5. See the definition contained in the Explanatory Guide to the Family Law Rules 2004 (Cth). However the note to the guide provides that the guide, unlike a dictionary is not part of the Rules and is offered as an explanation of the words mentioned in the guide; Superannuation Industry (Supervision) Act 1993 (Cth), s 10; A.A Preece, Lee’s Manual of Succession Law (Lawbook Co, Seventh Edition, 2013), 21.
  6. Cullen v Cullen [2011] FMCA 375, [12]-[13].
  7. Estate of MacKenzie (deceased) & Estate of MacKenzie (deceased) & Anor [2007] FamCA 882; Whitehouse & Whitehouse [2009] FamCAFC 207.
  8. In the Marriage of GF & ER Strelys 12 FAMLR 437.

Emma Nisbet

Emma Nisbet

Senior Associate