What Happens If a Spouse or Civil Partner Dies During Divorce?

Many people underestimate the length of the divorce process in England and Wales and expect to be legally divorced much sooner than is legally possible. After proceedings are issued, you must wait 20 weeks before the applicant can apply for the Conditional Order.

Once the conditional order is made, you must wait a further six weeks and one day before the applicant can apply for the final order. Only on receipt of the final order are you legally divorced. It is worth noting that it is not possible to apply for the final order after the death of a party.

If one party dies during the divorce process before the final order is granted, the proceedings automatically come to an end and cannot continue. The legal consequence is that the parties are still considered married at the date of death and the surviving party is treated in law as a widow or widower. This can have profound implications on the distribution of the deceased spouse’s estate.

If a party dies after the divorce final order, the marriage has been legally dissolved. The parties are no longer spouses. The final divorce order does not resolve financial claims.

If death occurs after the divorce final order but before the finances have been resolved, the surviving party is a former spouse and not a widow or widower. The surviving spouse loses automatic spousal rights on intestacy, and they will no longer benefit unless the will expressly provides otherwise.

The surviving party may still be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 as a former spouse, but the position is generally less advantageous than claiming as a surviving spouse.

It is crucial for individuals contemplating divorce to review and update their wills at an early stage. Preparing a new will ensures that your estate is distributed in accordance with your current intentions.

If a party dies mid-proceedings, the proceedings abate, and the court are unable to make a financial order in these circumstances. A claim for a financial order is personal to the party’s marriage/civil partnership and does not survive death, meaning the court loses its jurisdiction to make a financial order.

The surviving spouse will retain the right to claim against the deceased’s estate for financial provision, and this will now be their only option.

It is unlikely that the surviving spouse would receive the same award that they would in financial remedy proceedings, as a claim against the estate will only be on a needs basis and will not consider factors that could have resulted in greater financial provision for them under financial remedy proceedings.

Pension sharing orders are more complex, as they are time sensitive. They will only take effect if the pension sharing annex has been properly completed and the implementation steps have occurred during the member’s lifetime.

If the pension member dies before a pension sharing order has taken effect, it will fail and cannot be enforced against the pension provider.

If the pension member dies after a pension sharing order has taken effect but before implementation, the pension debit is still effective. If the person receiving the pension credit dies before the pension sharing order has taken effect, the order will lapse.

If the person receiving the pension credit dies after the order has taken effect but before implementation, the pension arrangement should be contacted immediately and advice sought from a pension on divorce expert.

It is standard for pension sharing orders to include a provision that if the transferee were to die before implementation, then their personal representatives will provide consent to an application by the pension member for permission to appeal to the Family Court out of time.