What Happens if my Ex-Spouse Dies Before Our Assets Have Been Divided?

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Financial remedy proceedings are court proceedings about how assets are divided on divorce. Division might include court orders for one party to pay the other a lump sum, monthly maintenance, or a share of their pension. Some spouses are able to agree how to divide their assets between themselves with the help of legal advice. Resolving matters in this way can save legal costs for both parties but is not always possible. Where individuals  cannot agree how to divide their assets, the court will need to decide this for them at trial. A new case has recently confirmed what the court will do if one party dies before this happens.

Why is the case important?

A significant case about financial remedies has been decided by the Supreme Court in Summer. The case was about what happens if a party to financial remedy proceedings dies during those proceedings. This case was important because Supreme Court cases offer guidance for judges deciding future cases.

What was the background to the Supreme Court case?

The Supreme Court case was brought by Ms Hasan, who had married and then divorced Mr Ul-Hasan. In 2017 Ms Hasan received permission to bring proceedings for financial provision. However, before the court decided what that financial provision should be, Mr Ul-Hasan died. He died shortly before trial, which had been postponed due to the COVID-19 pandemic. Ms Hasan asked the court for permission to bring proceedings against Mr Ul-Hasan’s assets, known as their ‘estate’ after death. This was the issue which the Supreme court considered.

The parties in this case had married and divorced in Pakistan. As a result, different law applied to many other cases heard in this country. However, the legal principles which the Supreme Court considered have broader application.

What did the Supreme Court case say about claims after death?

The Supreme Court decided that the claim could not be continued against a person who has died, or their assets. The Supreme Court considered carefully what was intended by Parliament in the existing law. Times have changed since the law in this area was made. However, it is not the role of the Supreme Court to change law created by Parliament. The Supreme Court noted that there could be a very different outcome if a party died just after a decision is made.

What should I do if there is a risk of death in my case?

This case emphasises that it is important to take thorough legal advice if there is risk of death before or during divorce proceedings. There are also other options for making legal claims after death, such as under the Inheritance Act. A specialist lawyer will be able to advise on the options in your specific case.

Here to Help

If you need advice on any family matter, please get in touch with Tracey Dargan, Partner and Head of Family and Divorce.

Please note the contents of this article are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.