What If My Spouse Dies During Our Divorce?

Unger v Ul-Hasan – Supreme Court judgement 28^th June 2023

A leading judgement (found here) on this very question was handed down on 28 June 2023 following a financial claim made by a wife against her deceased husband’s estate. As highlighted by The Times newspaper in their article, found here, “The Supreme Court judges said allowing legal proceedings to continue after the death would require a reform to the law”.

In this blog, FLiP Director James Pirrie provides a summary of the current law as well as highlighting the changes needed.

You would think that there would be a clear answer to this question. Well not til now, or at least not clearly enough that this family could avoid a hearing in the Supreme Court to confirm the point.  And we now have a 20,000 word “whodunnit” painstakingly piecing together clues and applying beautiful legal logic to finally give a clarity that has not existed for the past forty years.

Spoiler alert – it is a bit of a disappointing set of conclusions, in that I would have thought that we need a law that is more modern, but the Supreme Court say that they cannot by law provide it and it is another one of those problems that requires Parliament’s help.

So, what we now know is this:

• If you have an order and a final divorce order then if either side dies it doesn’t stop you from following the order through. It is possible that someone might apply to overturn that order on the basis that its structures are upended by this foundational change, the so called “Barder application” but subject to that, this is so.
• If you haven’t applied yet, you can’t.
• If you have applied but haven’t  yet got an order, you are going to have to see if there is another route to help you because you can’t just carry on.
• If you have applied AND have got an order BUT not yet finalised the divorce, it is the same. We think this is so although this point wasn’t specifically covered. You are going to be sent back to the start. This is because it is the divorce that gives life to the various entitlements in the financial order and without the trigger-moment of the divorce itself, they are simply potential. But as you can’t divorce someone who is no longer with us that is how things remain stuck: the potential can never ever become activated.

In fact the case concerns financial claims after a foreign divorce but we think that the logic will apply to the more usual case of domestic divorces.

I said this is disappointing and unmodern and I should try to explain that.

Of course no family is alike but if one thinks about a spouse, let’s call them Sam, who has accumulated pots of money, but we all know one of the reasons why: it is because Jo has been at home running around keeping the show on the road.

Since the 26^th October 2000 (give or take) our law has come to treat these spouses as a partnership, meaning that one of the ways that you think about their finances if they then separate, is that they are equally entitled to what has been built up through all the years that they have been together, even if all of these resources happen to have been put in pots with Sam’s name on them.

So that feels to me that Jo should be able to ask for the realisation of this entitlement if Sam dies.  It is not a right that is personal to Jo if Jo dies or Sam dies but if you like a proprietary entitlement and an Act back in 1934 recognised that property entitlements should survive death.

Mr Justice Mostyn, the first instance judge, thought so too, but the Supreme Court, one senses with a bit of a heavy heart decided that they just couldn’t go with that just solution.  Courts all say that they have to interpret what Parliament must have intended and the key bits of evidence are that:

• All of the financial claims that Jo must make are expressed by Parliament in terms that clearly assume that Sam is still with us.
• Previous cases assumed that these rights were personal and so ended with death and so (the logic goes) Parliament must have known that this was the way that the court was dealing with these claims so when it passed this Act of Parliament in 1984, it should have had in mind that if it was trying to do something different it would need to be clear about it.
• Further, Parliament would not have created alternative routes for these sorts of claim  – ie claims under the Inheritance (Provision for Family and Dependants) Act if the primary route was available.

So, says the Supreme Court, if you piece together the pointers, you are stuck with the conclusion that “actio personalis moritur cum persona” – a personal right of action dies with the person.

Giving guidance on the question raised in the heading is difficult because all families are different but what you are likely to need think about is this:

1. “What rights do I have and what assets would I get / keep (for example because of a Will or intestacy or because it is jointly held property or under nominations of pensions) if there is no order?”; and then
2. “What am I going to get under the court’s award?”

If B is bigger than A (ie as Jo) you are going to want to push on and finalise not only the financial proceedings – but you want to get your order and finalise the divorce asap too.

If A is bigger than B (ie as Sam) and you have other people you want to provide for instead of your ex well, to be brutal or strategic (and just pause there, that is not always a great idea) then you might want to slow things down a bit.

• Widow(er) Jo may possibly have rights to pursue against your estate; however, leaving the financial proceedings unresolved throws up some additional hurdles that may – you may find – help you;
• If it is Jo who passes then you probably are relieved if carving out of your share of the resources, the additional share that Jo’s legal team persuaded, or is likely to persuade, the court you should pay.

But these questions are always nuanced and specific and pension entitlements in particular may add curve balls to the chaos.  Hold in mind too that this is the answer for now. It seems to call for a law change and perhaps that will be along in the coming years.

In the meantime and as is so often the case the better answers may lie in:

• Insurance;
• Advice; and
• Ethical & appropriate dialogue and moving forward with your lives, minimising costs and sidestepping the years of litigation that has for example dogged this family.

The spouses have now both passed – their spirits have seen litigation continue for some years beyond. And for now at least, that sort of thing will not be possible.