My former spouse or partner has died, can I apply for financial orders?
The Court only has jurisdiction to make financial orders if, at the time when the application was filed, both parties to the relevant marriage or de facto relationship were alive.
The time of filing is not necessarily the same as the time when you submitted your application to the Court. See rule 2.23 of the Family Law Rules 2021.
Our proceedings were started before my former spouse or partner died. What happens now?
Property settlement
When there are already property settlement 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.
In other words, if someone involved in property settlement proceedings dies, the proceedings can continue, with the dead person’s personal representative (usually the executor of their estate) taking their place.
However, the orders which the Court ultimately makes may be different to the orders the Court would have made if the party had not died.
See sections 79(8) (in relation to marriages) and 90SM(8) (in relation to de facto relationships) of the Family Law Act 1975, and rule 3.19 of the Family Law Rules 2021.
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.
See sections 82(2) (in relation to marriages) and 90SJ(1) (in relation to de facto relationships) of the Family Law Act 1975.
Legal advice
You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent orders or applying to the Court, or if you have been served with an application. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.
For information on how to get legal advice, see Legal Help.
