Deathbed filing of property settlement claims
“Deathbed” claims – The recent case of FROST (DECEASED) & WHOOTEN[2018] FamCAFC 177 highlights the importance of “filing” proceedings before the death of a party.
Property settlement claims can only be made by, or against, parties while they are alive.
If one of the parties dies before proceedings are filed, the family law courts have no jurisdiction and the interested (and alive) party will need to turn to estate law for possible relief.
In the Frost case, the estranged husband was involved in a serious accident and taken to hospital where he died shortly thereafter.
His estranged wife sought to file an urgent application for property settlement.
Her application was “filed” on the court portal after 4.00pm (about 7.30pm which was before her estranged husband passed away later that day), which, under the court rules, deems that the application was filed the next business day.
Because her application was therefore “filed” after her husband had passed away, the family law courts had no jurisdiction to entertain her application.
It is very important that if one of the parties is in fact on their “deathbed”, that an interested party file their application, not only before the other party passes away, but also, before 4.00pm of the relevant day.
Relying on estate law should you fail to meet this “deadline”, will not guarantee a result similar to that of family law.
Family Law is complex – know your legal rights – contact us today at Freedom Law for a free no-obligation assessment of your situation.
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