Complications with Divorce and Financial Remedy Proceedings: What happens when a party dies?

We understand that going through divorce and financial remedy proceedings can be extremely challenging, physically, mentally, and financially. It can be a lengthy process and proceedings can be complicated generally. Unfortunately, if a party were to pass away during divorce and financial remedy proceedings, this will complicate matters further and not many clients are aware of this.

The effect of death will vary on a case-by-case basis; however, it will also depend on the following:

1. What stage of proceedings you are at;
2. Whether Decree Absolute (now known as a ‘Final Order’) has been granted; and
3. Whether the party was domiciled in the UK at the time of the proceedings.

What happens if a party dies before the Final Order is granted?

The Matrimonial Causes Act 1973 only provides remedies upon divorce and not on death. Such awards only take effect upon a final order in a divorce (once a divorce has been finalised ‘decree absolute’).

MCA 1973, Section 23 (5)

“Where an order is made under subsection (1)(a),(b) or (c) on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order shall take effect unless the decree has been made absolute/final”

Stanhope v Stanhope (1886) confirms this position that a decree cannot be sought after the death of a party. So, if this is the case, you will be a widow/widower and the deceased’s Will comes into effect. If the deceased did not make a Will, then the rules of intestacy will apply in the usual way. The Court are unable to exercise any discretion under S25 of the MCA. Once a death has ended a marriage, it cannot be dissolved through the courts.

What happens if a party dies after the divorce has been finalised and judgment has been delivered to the parties, but this has not been sealed?

If a final order in respect of the divorce has been granted and a party to the proceedings passes after the divorce has been finalised, judgment has been delivered to the parties, but this has not been sealed by the court, then the order would have been enforceable.

This was demonstrated in the case of McMinn v McMinn [2002], where Justice Black confirmed that it is not necessarily prerequisite for every detail to have been resolved by the court. The mere fact that the order was not stamped by the Court despite judgment being received by the parties, was not a reason for the judge not to determine that an order for ancillary relief was granted on the relevant date.

What happens if a party dies before a financial settlement is reached?

If a party dies before a financial settlement is reached, there is scope for a party to make a claim under the Inheritance (Family and Dependants) Act Claim 1975 as a spouse.

In order to meet the criteria for this, the deceased must have been domiciled in England and Wales at the date of death and the claimant must fall within one of the recognised categories such as a spouse, former spouse, cohabitee, a child of the deceased, step- child or other dependants.  Inevitably the surviving party will be either a spouse or surviving spouse making it possible for them to bring such a claim.  The criteria to decide such a claim are very similar to the criteria used by the court to settle a separation of assets on divorce.

What happens if a party dies when divorce has been finalised and after they have come to a settlement agreement, but the Consent Order has not been executed by all parties and Court is yet to seal it?

If a final order in respect of the divorce has been granted, a settlement has been agreed between the parties, the Court have been made aware of the settlement agreement, the D81 has been signed, but the Order has not been executed with all relevant signatures, nor has this reached the Judge to approve before the passing of a party, could you still have issues with enforceability of an Order? Yes.

“A claim for a financial order is personal to the parties to the marriage/civil partnership and does not survive death. If either party dies before the application under the Matrimonial Causes Act 1973 (MCA 1973) or Civil Partnership Act 2004 (CPA 2004) for financial provision or property adjustment has been made, the court will not have jurisdiction to make a financial order.” (Implications of the death of a party in financial proceedings (lexis.com))

As the law currently stands Xydhias v Xydhias [1999] remains authority, that an agreement, absent a Court Order, cannot be enforced.

In the most recent case of Unger and another (in substitution for Hasan) v Ul-Hasan (deceased and another) [2023] the Supreme Court were asked to consider whether a financial remedy claim dies along with the deceased party or whether such a claim can be pursued after death.

In this case, by a unanimous decision, the Supreme Court upheld the orthodox view that a claim cannot be pursued after the death of one of the spouses or civil partners.

This case has confirmed the position that once financial remedies proceedings have abated on the death of the deceased, nothing further can be done.

Other circumstances aside from the above examples may arise and each case can affect the decision depending on specific circumstances in that particular instance.  However, if you find yourself in a position where you are unsure and need to seek legal advice, please do not hesitate to contact us.

Speak to our family law experts

Should you wish to speak to a solicitor regarding the above in more depth, or in relation to any other family law matter, please contact a member of the family team on 03456 381 381 or email us at enquiries@ibblaw.co.uk.