Going through a divorce can be emotionally distressing and challenging however, in the event one spouse/civil partner dies during or shortly after proceedings it can bring an added element of complication. Although the death of a spouse/civil partner during proceedings is a rare occurrence, parties must be aware of the issues to consider depending on the stage divorce proceedings have reached at the time of death. We have outlined potential stages and the relevant issues to consider below:
1. A Consent Order has been sealed (subject to Decree Absolute) and spouse dies before Decree Absolute has been pronounced.
The Court only has the power to make financial provision and property adjustment orders on granting a Decree Absolute. Therefore, it is standard practice to draft Consent Orders in proceedings for a financial remedy as either being ‘subject to Decree Absolute’ or ‘with effect from Decree Absolute’.
A Consent Order becomes null and void if a spouse/civil partner dies after the order is perfected and sealed, but before Decree Absolute.
This principle was considered in the case of McMinn v McMinn, whereby the executors of a wife who had been killed by her husband sought to enforce an order made against the husband in ancillary relief proceedings where there was no Decree Absolute. The executors application was unfortunately dismissed due to the fact section 25(3) of the Matrimonial Causes Act 1973 clearly provides that only a Decree Absolute could make the order for ancillary relief effective. As it was the death that ended the marriage, it could not be dissolved through the courts.
2. A Financial Order has been made which is not subject to Decree Absolute or Decree Absolute has already been pronounced.
The Court may make certain other specified orders to take effect before Decree Absolute such as orders for costs, maintenance pending suit or pension sharing orders.
In the case of Christina Estrada (as reported in our earlier blog post: http://lundbennett.co.uk/blog/miss-estrada-may-have-to-sue-her-own-step-daughter-in-order-to-recover-her-multi-million-pound-financial-settlement-after-former-husbands-death/ ) Ms Estrada was awarded £53million by way of financial settlement following the parties’ Saudi divorce which became absolute in December 2014. Unfortunately her husband, Dr Juffali, died nine days before the date he was due to transfer the money pursuant to the Order. As the Order had already become legally binding, this established a formal debt which could be sued upon. Dr Juffali had an unfulfilled financial obligation which, on his death became the responsibility of his executors.
1. No Financial Order has been made.
If a spouse/civil partner dies after divorce proceedings have been issued but before a financial order, the situation is more complex.
In the recent case of Mr & Mrs Vindis. Mr Vindis died two months after divorce proceedings had been issued but financial matters were unresolved. As the parties were still married, Mrs Vindis became a widow. Mr Vindis had assets of approximately £12million but had left his wife only £36,000 in his Will. As no financial order had been made in the divorce there was no ‘debt’ owing to Mrs Vindis and she therefore had to bring a claim against her husband’s estate under the Inheritance (Provision for Family and Dependants) Act 1975.
In the event your spouse/civil partner dies during divorce proceedings but prior to a financial order being granted you should first ascertain the contents of your spouse/civil partner’s Will. If you have been sufficiently provided for in the Will (and your spouse/civil partner has not remembered to update their Will upon separation), the executors of the estate are obliged to follow the terms of the Will even if divorce proceedings were ongoing.
If you have not been sufficiently provided for in the Will, you may need to follow in Mrs Vindis’ footsteps and bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. When dealing with such claims, the court consider a number of factors, including the length of the marriage, contributions made and the financial resources and needs of the applicant. The court will also look at what the applicant would have been likely to receive in the event that marriage had ended by Decree Absolute, rather than one spouse/civil partner’s death.
If you are concerned about dealing with financial matters upon separation or would like to discuss any of the issues outlined in this post please contact a member of our team for more advice today on 0161 927 3118.