Where does death leave the divorce Itself?

If Divorce proceedings are ongoing – and the same would apply to civil partnership dissolution and judicial separation proceedings– but a final decree (known as a decree absolute) has not yet been pronounced, then those proceedings are instantly ended by a death. The reason for that is that the marriage ceases to exist upon the death, so there is no longer a marriage to end by divorce. This applies even in cases where decree nisi (the first court decree) has been pronounced.

What does that actually mean? The surviving party to the marriage will be a widow or widower with all the usual entitlement to death benefits and will be a spouse for the purposes of intestacy (i.e. where the deceased did not have a will). If the survivor chooses to bring a claim against the deceased’s estate under the Inheritance Act (Provision for Family and Dependents) Act 1975 (of which, see more below), then they can do so as a spouse, which confers a significant advantage under the Act. The fact that they were about to become an ex-spouse would not stop this, although a court would consider this factor when making its decision.

Where does death leave the financial proceedings?

It is often not understood that a divorce itself only ends the marriage – it does not actually have any effect on finances. That requires a separate but related set of Court proceedings for financial remedies arising from divorce. The same, again, applies to civil partnership dissolution or judicial separation proceedings: they do not affect finances. Usually (although by no means always), the party who has petitioned for divorce will hold off applying for decree absolute until financial matters are resolved.

If these financial proceedings are ongoing, then there is no law that says that those proceedings instantly stop if one of the parties dies. However that is largely academic – the Court’s powers to award property or lump sums of money are only enforceable upon the granting of a decree absolute. So, the effect of one party dying before decree absolute is that the court is stripped of its financial powers. Even where the decree absolute has been pronounced, if one of the parties dies, the financial proceedings cannot continue, even though they may not have concluded.

The effect of all of this is that, if the financial proceedings are not resolved before the death, then they die with the deceased party. The estate or beneficiaries cannot continue to fight the financial proceedings  on behalf of the deceased. To the extent that the parties jointly own property, then some claims in land and trusts law may survive, depending on the circumstances. However, these may be extremely uncertain and difficult to unravel.

A widow or widower or an ex-spouse (who has not remarried) of the deceased person, who thinks that they have not been adequately provided for by the will (or the intestacy laws if there was no will), can make an application to court under the Inheritance Act (Provision for Family and Dependents) Act 1975 for more (or different) provision from the deceased’s estate. There is some written law to cover this – if the death occurs within 12 months of the Divorce,  the Court dealing with a claim on the estate can choose to treat the parties as if they were still married. This is an avenue that a surviving spouse who was the “poorer” party in a marriage may go down. It does not assist a poorer spouse’s estate when they have died leaving the “richer” spouse the survivor.

If financial proceedings have been concluded and the final Decree has been pronounced, then the Order is still enforceable by the estate, though any maintenance (monthly/regular payments) will certainly be lost. However a death not long after a Court Order is made might allow the survivor to appeal the Order depending on the individual circumstances. A number of factors will be important including the extent to which the court’s award was based on the deceased party’s “need” as opposed to their right to “share”, and to what extent the death was foreseeable.

Conclusions

If there is concern over the health of a party to a proposed or ongoing Divorce or separation, then specialist advice should be sought very quickly. If a death is foreseeable, there can be  advantages to the parties co-operating, with very significant savings in inheritance tax – not to mention tens of thousands of pounds of legal fees. Sometimes it is better for elderly people not to Divorce, as mutual advantage can be gained if they actually remain married.

One thing should certainly be done if someone’s health is in question – make very sure they have an up to date Will. Whilst a completed Divorce cancels some elements of a Will providing for the divorced spouse, it is far better to have a proper, updated  Will, than to rely on such legal stopgaps. Without an up to date Will it is certainly not unknown for an estranged spouse to become entitled to the entire estate, leading to (at best) expensive and complex battles in Court over the estate.

Tim Melville-Walker is a solicitor and Head of the Family Department at MacDonald Oates LLP.

Hanna McSorley is a specialist family barrister at Guildford Chambers.

15th January 2016

N.B. this article refers to the law of England & Wales only and it accurate at the time of writing. Laws do change so please do get in touch rather than rely on this.