‘In this world, nothing can be certain except death and taxes.’ So Benjamin Franklin is said to have written to Jean-Baptiste Le Roy. Taxes and their impact are usually closer to the front of the minds of those going through divorce or a dissolution of a civil partnership, but occasionally death can rear its head, and cause significant disruption to those anticipating or venturing into a new structure to their lives following the breakdown of their family.

This article considers the legal and financial implications that arise in England and Wales when a divorcing or recently-divorced party to a marriage dies.

At what stage are proceedings?

As readers are likely to be aware, financial remedy proceedings are usually initiated upon divorce. Only orders under s 27 Matrimonial Causes Act 1973 or Sch 5, clause 39 Civil Partnership Act 2004 allow for financial provision for a married party in the case of the other party neglecting to maintain the applicant or a child of the family. Such applications are very rarely issued and they will not be considered in this article. Pursuant to FPR 9.4 applications for financial orders can be made in an application for divorce or dissolution of a civil partnership or at any time after the final order in those proceedings has been made (assuming the application is not barred under s 28(3) Matrimonial Causes Act 1973 or Sch 5, clause 48 Civil Partnership Act 2004).

If a party dies before financial remedy proceedings are issued, then the adviser must consider at what stage the divorce was at.

If the divorce petition had not been issued and all the way up to pronouncement of a final order of divorce/decree absolute, then the parties remained married. If there was a valid will executed by the deceased prior to death, his estate devolves under that will, subject to any claims that may be brought under the Inheritance (Provision for Family and Dependants) Act 1975 against its division where it does not provide for reasonable financial provision for his spouse, or otherwise reasonable financial provision for any of the other potential categories of claimant. If there was no valid will, then the deceased’s estate devolves under the intestacy rules set out in s 46 Administration of Estates Act 1925 and Sch 1A to that Act. The surviving spouse currently receives the entirety of the deceased’s estate if the deceased has no issue, or otherwise, if he has issue (children and/or grandchildren), then:

(1) all the personal chattels of the deceased,1 namely all tangible movable property, other than any such property which consists of money or securities for money, or was used at the death of the intestate solely or mainly for business purposes, or was held at the death of the intestate solely as an investment;

(2) a fixed sum £322,0002 free of tax and costs, together with simple interest on it at the Bank of England rate that had effect at the end of the day on which the intestate died3 from the date of death until paid or appropriated; and

(3) thereafter as to one half of the residuary estate (what remains) in trust for the surviving spouse, and as to the other half on statutory trusts for the issue of the intestate.

On a death resulting in intestacy prior to divorce, where the former matrimonial home or any other real property or assets were held beneficially as joint tenants between the spouses, then the right of survivorship applies, and the deceased’s interest in that property or assets passes to the survivor outside the deceased’s estate. It would not fall within the division provided for in the intestacy rules. If there is a beneficial joint tenancy in relation to property or assets between the deceased and a third party, likewise the said property transfers absolutely to that third party outside the deceased’s estate. This can cause difficulties for a surviving spouse with no beneficial interest in the former matrimonial home and she may have to take steps towards a claim under the 1975 Act to protect herself.

Where the former matrimonial home and/or other property and assets were held by the intestate deceased and the surviving spouse as beneficial tenants in common, then the survivor retains her share and the intestacy rules apply to the deceased’s estate, with that estate having within it only his share of the property provided for under the trust and from which the survivor’s share on intestacy will derive.

By virtue of s 5 Intestates’ Estate Act 1952, the surviving spouse has the right to acquire the matrimonial home in which she resides from the deceased in accordance with the provisions of the Second Schedule to that Act by requiring the deceased’s personal representative to exercise his power under s 41 Administration of Estates Act 1925 to have the deceased’s interest in that property appropriated to her as part of her absolute entitlement (i.e. in relation to the fixed monetary sum and/or chattels). In order to do this, she must exercise that right within 12 months of the date of the Grant of Letters of Administration to the personal representative4 and in advance of exercising that right she may require the personal representative to have the interest in the home valued in accordance with s 41 Administration of Estates Act 1925 and to inform her of that value before she decides whether to exercise the right (bearing in mind that she is, in effect, paying for that interest).5 If the issue arises towards the end of that time limit, the court may extend the time, or alternatively the personal representative may consent to an appropriation outside the time limit.

If financial remedy proceedings had been issued prior to the death and the parties have reached an agreement on the outcome or otherwise the court has given a judgment providing for the outcome, but the final order of divorce has not yet occurred, what then? Under ss 23(5) and 24(3) Matrimonial Causes Act 1973 no order for financial provision for a spouse nor for a property adjustment order takes effect until there has been a final order on the divorce itself. Note that orders for financial provision for children under s 23(1)(d)–(f) are not excluded by s 23(5) and so they must be assumed to take effect upon their making, whether or not the divorce is made final.

Where a final financial remedy order has been made, whether by agreement or by the court after a contested hearing, if one party to that order dies before the making of the final order of divorce, then the survivor finds herself in difficulty. She may wish to ensure that the financial remedy order can take effect and seek to finalise the divorce, but she cannot do so, as once death has ended a marriage, it cannot be dissolved by divorce.6 The financial remedy proceedings end as there is no jurisdiction to hear an application for ancillary relief after the death of one of the parties.7 This also applies in cases for financial relief claims in England and Wales after a foreign divorce under Part III Matrimonial and Family Proceedings Act 1984.8 In the case of the deceased dying domiciled in England and Wales, as above, the survivor remains married and has a claim, if necessary, against the estate of the deceased under the Inheritance (Provision for Family and Dependants) Act 1975. If, however, as in Unger v Ul-Hasan,9 the deceased died domiciled abroad, then there is no ability of the survivor to bring a claim in the English Courts for any kind of discretionary financial provision. There may be the prospect of a claim being brought in the foreign jurisdiction, if necessary (e.g. because there is no or minimal provision for the survivor in any valid will or otherwise because forced heirship provisions make insufficient provision).

If the divorce had been made final and the financial remedy judgment had been delivered to the parties or otherwise a compromise had been approved by the court, but the order consequent upon that judgment or agreement had not yet been sealed, the order arising therefrom would remain enforceable.10 Black J, as she then was, said in McMinn v McMinn:11

‘It is clear that it is not a necessary prerequisite for an order either that the order has been formally typed up, stamped and/or issued by the Court or that every last detail of the arrangements should have been resolved by the Court.’

‘In summary, therefore, s.25(5) apart, I consider that the district judge made an order for ancillary relief on [date].’

Where a party dies before the final divorce order is made, one of the concerning issues for the survivor is that the costs of both sides are by then wasted. There is no possibility of enforcing anything other than previously-made costs orders. However, if the final divorce order has been pronounced prior to the death, then the court can determine costs applications even after the death of a party. Again, Black J (as she then was) in McMinn said:12

‘I do not consider that the absence of provision as to costs in the district judge’s written judgment prevented it from being an order, particularly given that he made provision for a means by which any costs issue that there might be could be resolved.’

I’ve got my final order on divorce but my ex has died. Can I do anything about it?

Most final financial remedy orders provide for an asset and income clean break. There are usually orders made within those orders under s 15 Inheritance (Provision for Family and Dependants) Act 1975 providing that the survivor cannot apply for an order out of the deceased’s estate after divorce. Again, s 15 1975 Act orders only take effect upon the final order of divorce, although the orders can be made after the conditional order of divorce is pronounced.13 Orders under s 15(1) 1975 Act barring applications for claims under estates also apply to judicial separations where the judicial separation order is in force and the separation is continuing.14 Sections 15(ZA), 15A and 15B apply in the same terms to civil partnerships, and applications for financial relief after foreign divorce or foreign dissolution of civil partnership.

If, prior to the death, there had been no financial remedy proceedings reaching their conclusion, even though there was a final divorce order, then, if the deceased died within 12 months of the making of the final order of divorce/dissolution, the survivor has a claim available to her under s 2 1975 Act as a spouse.15 Where there is no reasonable financial provision made for her under the deceased’s will, the law of intestacy or a combination of the two, then she can claim for such financial provision as it would be reasonable in all the circumstances of the case for her to receive, whether or not that provision is required for her maintenance.16 If the deceased dies more than 12 months afterwards, then the survivor is able to bring a claim under the 1975 Act for such financial provision as it would be reasonable in all the circumstances of the case for her to receive for her maintenance.17

Where there was a final order for divorce and a final financial remedy order made prior to the death, but that final financial remedy order has no or a delayed s 15 1975 Act bar, e.g. because there is a joint lives maintenance order and no income clean break has occurred, then claims by the survivor can be brought under s 14 or s 14A together with s 1 1975 Act to deal with a continuation or variation of that provision. Sections 16–18A 1975 Act deal with claims for variation and discharge of secured periodical payments orders under the Matrimonial Causes Act 1973 and of maintenance agreements, including providing for the ability to replace them with other orders contained in s 2 1975 Act (periodical payments, lump sums, transfers of property, creation and variation of settlements/trusts).

If there was a final order for divorce and a final financial remedy judgment or order prior to the death, including a clean break and a s 15 1975 Act bar, what then? The final financial remedy order was made in circumstances where two adults had to have provision made for them, and now there is only one survivor who has continuing needs. Is it fair to hold the survivor and the deceased’s estate to the terms of the final financial remedy order?

That depends on whether the survivor can establish:

(1) that the death was a Barder event or there was another vitiating factor undermining the financial remedy order; and

(2) that the original order was not based on a sharing claim, but was a division of assets on a needs basis. The case law shows that where sharing awards were made, the original order would not be disturbed, but where the question was one of meeting needs from insufficient assets generally, then there is scope for a revision of the terms of the final order, since the deceased no longer needs as much of the assets, and the survivor might need them still.

In Barder v Barder (Caluori Intervening)18 shortly after making a final order for ancillary relief the wife killed the parties’ children before taking her own life. The financial settlement had been based on the fundamental assumption that she and the children had housing needs. Their deaths invalidated the basis for the order. The effect was that her administrator (her mother – Ms Caluori) did not take Mrs Barder’s share of the matrimonial assets as Mr Barder needed them. That case established that a surviving ex-spouse could apply for leave to appeal out of time and the court might properly exercise its discretion to allow that appeal on the ground of new events provided that:

(1) they invalidated the fundamental assumption on which the order was made, so that if leave were given, the appeal would be certain or very likely to succeed;

(2) the new events occurred within a relatively short time, probably less than a year, of the order being made;

(3) the application for leave to appeal out of time had been made promptly; and

(4) the application does not prejudice third parties who had acquired, in good faith, and for valuable consideration, interests in property which was the subject matter of the relevant order.

The ratio in Barder was followed in:

• Smith v Smith (Smith & Ors Intervening).19 In that case H and W had been married in December 1955 and decree absolute was pronounced in 1988. W applied for ancillary relief when she was 52 and H was 62. The registrar considered that an equal division of the assets was the only just conclusion and made an order for a £54,000 lump sum to W. 6 months later W died by suicide and left her estate, including the lump sum, to her daughter. H appealed. On H’s appeal the judge assessed W’s needs as those of the estate, i.e. her debts, but otherwise they were non-existent. The order was varied to require the estate to repay H the lump sum, save for a sum to repay W’s debts. W’s daughter appealed the appeal court’s decision. The Court of Appeal allowed her appeal. The question was, ‘what was the right order to be made between H and W where W was known to have 6 months or so to live?’ W’s needs were limited to a brief period. A clean break would have been unlikely. Needs were not the only criteria for consideration. All the s 25(2) Matrimonial Causes Act 1973 criteria had to be considered. W had made an equal contribution to the marriage over 30 years and had a right to recognition of that contribution. The registrar’s order was varied so that W received £25,000, which would then pass under her estate. It was stated that the eventual destination of W’s estate was irrelevant. She could leave it in any manner she wished. The argument that an order should not be made for the purpose of benefiting an adult child did not arise.
• In Barber v Barber20 W became ill with liver disease after receipt of decree nisi. The medical evidence at final hearing was that she could hope to live at least another 5 years. H had the children living with him. The judge at first instance ordered that the family home be sold and W receive £125,000 to buy a home and periodical payments to meet income needs. W died less than 3 months later, and after decree absolute had been pronounced. H appealed, arguing that W was to have sufficient capital to rehouse in a property where the children could stay/live with her and this need was no longer there. W’s estate had passed to her children on statutory trusts on her intestacy. H sought to avoid the sale of the family home, into which he and the children had returned to live. The court held the correct approach is to consider what order would be made where there was knowledge that W would have only 3 months to live. W would have stayed in the family home, H would have maintained her, she would retain her 50% share, and there would have been no capital order made in her favour. She had made a substantial marital contribution. Her share of the family home had effectively passed to her sons. The order would be varied so that the children would retain a 40% share of the family home to take account of H having to bring them up and the property would not be sold without H’s consent pending the youngest reaching his majority.
• In Reid v Reid21 there had been a 40-year marriage. A consent order was made dismissing all claims and reciting an agreement between H and W that the FMH be sold and the net proceeds of sale divided 40% to W, 60% to H. H needed to rehouse. W did not. Two months after the date of order and 15 days after decree absolute, W died of a heart attack, aged 74. W had disclosed in proceedings that she was registered blind, had high blood pressure, had high cholesterol, and was diabetic. W’s actuarial life expectancy in proceedings was 13 years. H appealed, arguing that the net proceeds of sale should be divided 75%/25% in his favour. W’s executors countered that:

(1) the early death of a 74-year-old woman was foreseeable and could not qualify as a new event;

(2) post White W was entitled to an award based on contributions rather than needs;

(3) W could choose what she did with her share, including bequeathing it by will;

(4) W had received less than half the value of the property to meet H’s needs and a further reduction of her share was not justified.

It was held that W’s death 2 months after the order amounted to a new event which had not been reasonably foreseeable. Had it been known that she only had 2 further months to live, what then was the appropriate order? The length of W’s future needs would be the subject of a severe contraction. H needed an increase in his liquid capital as he had small pension income. The recited agreement of the parties would not be disturbed, but the mechanism to alter the division would be an order for W to pay a lump sum to H.

• In Richardson v Richardson22 H and W had a 46-year marriage. During the marriage they had run a hotel business together as equal partners. The net value of the assets on divorce was circa £11m. No allowance had been made by them for a potential claim arising from an accident some years earlier where a child fell from the hotel window and suffered injury. Both parties believed any claim would be covered by insurance. W received 47.5% assets (hers were more liquid than H’s). She was to resign from their partnership and H would indemnify her against all partnership liabilities. This occurred shortly after the order was made. Six weeks after the order was made, W died suddenly of a heart attack. The parties’ son was sole executor and beneficiary of the estate. Twelve weeks after the final order (5 years after the child’s accident) H became aware the insurer had avoided the insurance policy. His insurance broker and accounts manager had been aware it was likely, but H had not been. H appealed the order out of time on the basis of a Barder event (W’s death) and alternatively on the basis of vitiating mistake (that the parties were initially under-insured and, indeed, not insured). Held that W’s death was not a Barder event as, although her death was unforeseen, the basis upon which the order was made – equal sharing in the fruits of the marriage as a result of W’s equal contribution by being an active business partner – still stood and was not invalidated. The order was not referable to her needs or her future expectation of life. H’s failure to note that the original insurance cover was likely to be less than that required to meet any claim for damages was not a vitiating factor, but H’s (and W’s) lack of knowledge that they were, indeed, uninsured was a vitiating factor and the appeal was allowed. In that case Thorpe LJ (with whom the other judges (Munby and Rimer LJJ) agreed, stated:

‘Cases in which a Barder event, as opposed to a vitiating factor, can be successfully argued are extremely rare, should be regarded by the specialist profession as exceedingly rare, and should not be thought to be extendable by ingenuity or the lowering of the judicially created bar.’

• In WA v Executors of the Estate of HA (Deceased)23 H and W married in 1997. They had three children under the age of 14 upon separation. Neither party worked during the marriage but their contributions to the marriage were significant. H was awarded £17.34m by agreement, to be paid in two tranches. The first tranche was paid. Twenty-two days later H died by suicide. H left his estate to his three adult siblings. W applied for permission to appeal out of time in reliance on Barder. W argued that the lump sum was awarded to H to meet his needs, which basis had been invalidated by his death. H’s estate argued his death was not unforeseeable (as he had taken the separation very badly) and also that his award was not only needs based, but that he was also entitled to a share of W’s resources. W’s appeal was allowed, reducing the lump sum to H to £5m. W had succeeded in meeting the Barder test as the fundamental assumption was that H had needs for housing and income in the long-term, which had been invalidated by his very early death. If his death had been foreseen, a nil award would have been wrong. The court would have considered sharing and need leading to an award where H had a month to live. H should have received an award of one-third of the value of the matrimonial property (which came entirely from W), namely £5m, taking into account H’s contribution as husband and father. H’s original award had been mostly needs-based, however, and was susceptible to being set aside pursuant to Barder.
• Critchell v Critchell24 concerned the death of a third party as a Barder event. In that case the only asset of the marriage was the FMH worth £175,000. A consent order transferring the FMH to W subject to 45% charge in favour of H realisable on Mesher terms was made. Within a month of the consent order, H’s father died leaving him a sum of money. W appealed alleging the receipt of the inheritance was a Barder event undermining the basis of the consent order. The Court of Appeal held that H’s receipt of an inheritance so soon after the hearing represented a change in the basis, or fundamental assumption, upon which the consent order had been made. The Mesher order was no longer necessary. The appeal court highlighted that original order was needs-based and if more resources were available, needs could be provided for more fully and there would be no need for a Mesher.

All of the above decided cases setting out the parameters in which a final financial order might be revised after the death of a spouse or of a third party were appeal out-of-time cases. Since the amendment of FRP 2010, PD 9A, para 13, an application for set aside or variation of the original order should instead be made to the first instance judge, and not to the appeal court.

What about pension provision?

The final issue this article considers is what should happen to pension sharing orders made and finalised prior to the death of one of the parties. The standard form order provides as a consequential direction to a pension sharing order:

i. It being agreed between the parties that in the event that the [applicant] / [respondent] non-member spouse predeceases the [respondent] / [applicant] member spouse after this order has taken effect but before its implementation the [respondent] / [applicant] member spouse shall [in order to prevent a loss of pension rights to the family overall] have the consent of the personal representatives of the [applicant] / [respondent] non-member spouse to apply to appeal out of time against the order under the Matrimonial Causes Act 1973, s 40A or s 40B (there being no requirement to obtain permission to apply to set aside an order under FPR 2010 r.9.9A).

The question of when and how pension provision can be altered was considered in two recent cases:

• First by HHJ Farquhar in Goodyear v Executors of Goodyear (Deceased)25 when H applied to set aside a pension sharing order following W’s death, with the application opposed by W’s executor. The issue was whether W’s death was a Barder event. The court determined that the purpose of the pension sharing order was to ensure that the parties had sufficient income during retirement and that had it been known that W would not live more than 6 months after the order was made then the pension sharing order would not have been agreed. The judge found that the Barder criteria were satisfied and that the order would be set aside, but that it would not have been fair to W if no pension share had been made, as the parties had significantly different pension provision and a long marriage. She had a sharing claim, which was satisfied by her receiving 25% of H’s pension to reflect her entitlement. This case bears careful reading as to what can go wrong between the understanding of pension trustees as to their duties and the effect of pensions legislation on pension sharing orders and their implementation after the death of the recipient.
• Secondly by Christopher Hames KC (sitting as a recorder) in SY v Personal Representatives of the Estate of DY.26 The matter was listed for directions before the Judge but the costs were already becoming disproportionate to the issues and the parties agreed that the judge should deal with the substantive issues between them at that hearing. In that case a final financial remedy order had been made in September 2022. In March 2023 W died. As part of the final financial remedy order H had been required to share his NHS pensions with W. H appealed out of time on the basis of a Barder event rather than apply to set aside in order to avoid the implementation of the pension sharing order. The personal representatives of W conceded he should be granted permission to appeal and that the pension sharing order should be set aside. The question was whether that set aside should be conditional on H making payment of a lump sum to the estate, that being the lump sum W would have received from the NHS pension. H resisted this, stating that he needed the funds in order to bring up the parties’ three children and that the pension sharing order had been made to provide W with an income in retirement which, as a result of her early death, she no longer needed. The court considered that that the Barder criteria had been satisfied and set aside the pension sharing order, but only on the condition that H pay W’s estate the circa £50,000 lump sum. He held that the pension sharing order went also to an element of sharing and entitlement, not merely to meet needs. Accordingly, W’s estate should benefit so as to recognise W’s sharing claim and entitlement.

Conclusion

As is clear from the above, the death of one of the parties to the marriage may not be the end, but may instead be the start of harrowing legal negotiations and litigation if the surviving parties cannot reach an accord with the personal representatives of the deceased. It is vital in these difficult circumstances that early legal advice is taken and the survivors act pragmatically to ensure a fair outcome to all concerned. If they do not, the courts will ensure that occurs, with inevitable costs consequences following on.