Divorce, financial proceedings and death

If a party dies during a divorce or a financial remedy case, this can have a serious impact on the outcome of a case. The specific consequences depend on the type of case and how far in the process any case is.

What happens if your spouse dies and the divorce has not been finalised?

If your spouse dies before the Final Order in the divorce process has been made, the divorce proceedings cannot continue as the living spouse immediately becomes a widow or widower. The court cannot dissolve a marriage unless both parties are alive, therefore death brings an immediate end to a marriage in a different way.

What happens if your spouse dies and financial remedy proceedings have not been finalised?

The Matrimonial Causes Act 1973 does not apply once a spouse has died. Therefore, any outstanding financial claims will need to be pursued under The Inheritance (Provision for Family and Dependants) Act 1975. This means any financial remedy proceedings will need to be abandoned, and new court proceedings will need to be started.

However, a spouse may find that they do not need to issue any new proceedings under inheritance legislation if they inherit the matrimonial assets either in accordance with the terms of the deceased spouse’s Will, the intestacy rules (if there is no Will) or in accordance with the rules of survivorship, for example if the family home was owned as joint tenants, the property will immediately pass to the surviving spouse.

What happens if your spouse dies after a Financial Order has been made?

If a financial order has been made by the court and a spouse dies after that, the financial order remains a binding legal document that is enforceable. The surviving spouse can enforce the terms of the financial order against the deceased’s estate. This includes claiming any capital lump sum or property transfer that was awarded but usually excludes any ongoing spousal maintenance. The obligation to pay ongoing spousal maintenance typically ceases upon the death of the paying party, as it is a personal obligation. However, the surviving party may still be able to make a claim under The Inheritance (Provision for Family and Dependants) Act 1975 for these payments.

The surviving spouse may be able to apply to the court to ask for the Financial Order to be set aside, based on the unforeseeable death of the spouse being a supervening event (a Barder event). This is likely to be relevant where the terms of a financial order are made based on a party’s needs and that spouse then dies shortly after, and those financial needs no longer need to be met. This can lead to a court setting out new terms to reflect the new circumstances and can result in awards being reduced.

If you are considering a divorce or issuing financial remedy proceedings and concerned about how a death might affect proceedings, the best course of action is to seek independent legal advice as soon as possible.

If you need advice on  family law matters in England and Wales only, please contact Sharan at Gilson Gray for a confidential discussion.

The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.