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19th January, 2022 by Justine Flack
In the first of a series of articles, Head of Family Law at Howes Percival, Justine Flack considers the consequences of a death within divorce proceedings.
When people commit to one another in marriage they usually do so with the expectation that it will be for life. However, we all know that not every marriage stands the test of time. The average overall divorce rate in England and Wales for the past 50 years is 33.3%. Current statistics suggest that 42% of marriages now end in divorce.
But what is the effect if one spouse dies midway through the divorce process before decree absolute has been pronounced?
The answer is that the proceedings come to an end and the marriage has ended as a result of death. A Notice of Abatement should be filed to conclude the proceedings.
This however doesn't address the financial issues so what happens there?
If a financial order has already been made that establishes a formal debt which can be sued upon or enforced. The deceased spouse effectively has unfulfilled financial obligations which it becomes the responsibility of his executors to meet.
Depending upon the circumstances, the assets and the terms of the order, some adjustment might be needed as regards timing. It would be hoped that a co-operative and pragmatic approach could be adopted by all involved rather than further court proceedings needing to be brought.
Where the death occurs shortly after the order has been made there may be justification for applying back to the court to set aside its terms. This was the situation which gave rise to the case of Barder and what are now known as 'Barder events'. In that case the former matrimonial home was ordered to be transferred to the wife for the benefit of herself and the children of the family. Shortly afterwards the wife killed the children and herself. The husband applied back to the court because the basis upon which the order had been granted had changed significantly.
Where there is no final order the situation is more complex. If the deceased had a Will, any gift to the spouse will remain if decree absolute has not been pronounced. However, on separation parties often update their Wills to exclude provision for their former spouse. Where that is the case the survivor will need to bring a claim against the estate under the Inheritance (Provision for Family and Dependents) Act 1975. They would hope to receive what they might have been awarded had the divorce proceedings concluded.
When considering any claim the court will have regard to the financial needs and resources of the applicant, any other application in the estate and the beneficiaries under the Will or the intestacy provisions. Consideration will be given to the obligations and responsibilities which the deceased had to other parties and the nature and size of the estate. As with divorce, the duration of the marriage and contributions will be looked at as the court considers what the outcome on divorce might have been.
A recent case, Hasan v Ul-Hasan (Deceased) considered whether, on the death of one party the survivor could still pursue their claim under the Matrimonial Causes Act 1973. The High Court determined that the claim did not survive the death of the husband however, the wife was granted permission to appeal to the Supreme Court so we wait to see whether the position alters.
Other factors connected with divorce and which should be considered early in the process relate to how jointly owned property is held. Is it held as joint tenants or tenants in common? If the former, your share in the property will automatically pass to the survivor irrespective of the terms of your Will if the death occurs before the conclusion of proceedings. If you are not happy with that the joint tenancy needs to be severed and you need an up to date Will.
Your Will should be reviewed. If your spouse is named they will inherit as per the Will if decree absolute has not been granted. You may therefore want to update your Will. Likewise, if you want to provide for a former spouse after the divorce you will also need to update your Will.
Consider any nominations that may be in place regarding things such as death in service benefit, pensions and life assurance. If you would not want your spouse to be a beneficiary then these nominations need updating.
We frequently delay applying for decree absolute to preserve a person's status as a spouse in case a death occurs prior to the conclusion of divorce proceedings. This is particularly important where there are pensions. It is also important not to be subject to a clean break where spousal maintenance is due to be paid under the terms of the final order. Payments die with the payer, only arrears can be enforced against the estate. It is therefore vital that the recipient has the ability to bring a claim against the estate under the Inheritance (Provision for Family and Dependents) Act 1975 for capitalisation of the lost future years of maintenance.
Thankfully it is a rare occurrence that a death happens within the divorce process but in the past 25 years I have had it happen a number of times and often unexpectedly. Understanding the consequences is important and something to perhaps bear in mind if you are considering a ‘Do It Yourself’ divorce.
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