Within financial proceedings in the courts in England and Wales, the death of a party has a significant and often complex impact. The specific consequences depend heavily on the type of proceedings and the stage they have reached. This article is confined to proceedings under the Matrimonial Causes Act 1973. Here is a breakdown of the impact of death in various contexts:
Death During Divorce Financial Proceedings
The court can only make a final order upon the granting of final divorce order or decree absolute. If death occurs before any agreement or an order is made, it is straightforward, proceedings cease; the survivor, the widow/widower, has to look to other forms of remedy. For instance, the surviving spouse’s rights shift from matrimonial law to inheritance law. As a widow or widower, they may have a claim against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975.
The reasoning is that the divorce proceedings themselves are immediately terminated. The marriage cannot be dissolved by a court once one of the parties has died. As a result, the surviving spouse is legally considered a widow or widower, not a divorcee. The court’s jurisdiction to make financial orders under the Matrimonial Causes Act 1973 ceases upon death. As a consequence the surviving spouse cannot continue with their claim for a financial settlement through the divorce process.
Death After Agreement is Reached
If death occurs after agreement but before the order is sealed this is more complex and is likely to invoke further court proceedings. The first step is to identify whether there was an agreement. The well known cases of Xydias v Xydias 1999 1 FLR 683 where the parties had reached the stage of “heads of agreement”, and again in Rose v Rose [2002] EWCA Civ 208 where there was purported agreement, are relevant. [My colleague at Becket Chambers has written an article on this] Ultimately, it is the court’s discretion that decides whether there is an agreement or not.
Once it is established there is an agreement, for example a draft order is agreed and the parties have applied for a consent order, there can be delay between the agreement to settle and the order being sealed. If one party dies at any time before a final financial order is made and approved by the court in divorce proceedings, the situation changes drastically as technical, the financial proceedings under the Matrimonial Causes Act 1973 end. Potentially, the surviving party may have to rely upon setting aside the agreement on what is known as a Barder event. [Barder v Caluori [1988] AC 20, sub nom Barder v Barder (Caluori Intervening) [1987] 2 FLR 480]. This is where an unforeseen significant event has the impact of invalidating the order made, as the fundamental assumptions made by the court/ parties have significantly changed.
Death After A Final Financial Order is Made
If a financial order has been made by the court and a spouse dies after that, the situation is more straightforward. The starting point is that a financial order is a binding legal document that is enforceable. The surviving spouse (now a former spouse) can enforce the terms of the financial order against the deceased’s estate. This includes claiming any lump sum or property transfer that was awarded. A vital exception is 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.A death soon after an order is made may justify the court setting the order aside and re-evaluating the criteria in section 25 of the Matrimonial Causes Act 1973. This would be on the basis that the death was unforeseeable and the death amounts to supervening event under the Barder principles. WA v The Estate of HA 2016 1 FLR 1360: the husband sadly committed suicide 22 days after the order was made. The court in this instance did revisit the order and varied the original order, it reduced the sum awarded from £17 million to £5million. The court concluded that the death was unforeseeable, it was a supervening event as the original award was based on needs, those needs were no longer in existence. The court made the award based on the sharing principle. In Reid v Reid 2004 1 FLR 736, this was a case with modest assets. The wife had various medical conditions which would shorten her life, she however was expected to live another 5 years, she sadly died 2 months after the order was made. Her death was not foreseeable and in this instance the court awarded a further lump sum to be paid to the husband; the husband’s award was based on need.
In these highly sensitive and technical situations, sound legal advice is crucial. If you are navigating financial proceedings following the death of a spouse, or if you are concerned about how a death might affect an existing financial order or agreement, the best course of action is to seek independent legal advice as soon as possible.
