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Claims for Financial Relief

A former spouse cannot continue with the pursuit of financial relief following a divorce if their former spouse dies before the financial proceedings are concluded

The Supreme Court of the UK has decided that it is not possible for a divorced party to a marriage to continue with their claim for financial relief under the Matrimonial Causes Act (MCA) despite the death of the other party. The court decided that the powers of the court to order financial relief following a divorce can only be exercised as between living parties to a former marriage.

In these circumstances, the surviving spouse can choose to pursue a fresh claim against the Estate of their former spouse for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA). Under the Act, a former spouse may bring a claim if within twelve months of a decree of divorce or nullity of marriage or judicial separation an application for financial provision has been made under the MCA but was not determined at the time of the death of the deceased.

In these circumstances, the court has a power, if it considers it just to do so, to treat the former surviving spouse as if the decree of nullity or divorce of marriage had not been made absolute. When deciding a claim under the IPFDA the court will consider:

1. whether the provision made for the former spouse is reasonable; and, if not
2. what provision ought to be made for the former spouse.

The court will answer the questions above by considering the several criteria that are set out in section 3 of the Act as follows:

• The financial resources and needs of the former spouse
• The financial resources and needs of other applicants
• The financial resources and needs of the beneficiaries of the Estate
• The obligations of the deceased towards the surviving spouse
• The size and nature of the Estate
• Any physical and mental disabilities suffered by the surviving spouse and/or the beneficiaries of the Estate
• Any other matter the court considers relevant.

Three additional factors are also considered:

• The age of the former spouse
• The duration of the marriage
• The contribution made by the former spouse to the welfare of the deceased's family.

In claims under the IPFDA brought by someone who was still married to the deceased at the time of death, the courts also consider the provision that they would have expected to receive if the marriage had ended in divorce, instead of being terminated by death. This is known as the "divorce hypothesis". Whilst a former spouse is not the spouse at the time of death of the deceased, the court has a power to treat them as such.

The decisions of the civil courts who decide claims under the Inheritance Act are influenced heavily by the decisions of the family courts who deal with divorce cases. Marriage is now regarded by the courts as an equal partnership and therefore the division on breakdown must be conducted based on fairness and non-discrimination.

Broadly, the starting point is therefore generally equality of division of the matrimonial assets (not the Estate) unless there is reason to depart from this principle. Assets regarded as matrimonial property are generally those which have been acquired during the marriage (except for those that were acquired by inheritance or gift). However, none of the deceased's assets are ringfenced from the power of the court to utilise them to make provision. .

Non-matrimonial property are generally assets that were acquired by the deceased before the marriage, but how such assets are regarded very much turns on:

• the length of the marriage; and
• the degree to which the assets have been integrated.

A short marriage will not materially affect the outcome where the parties have built up assets from scratch during the currency of the marriage.

Equally, the relevance of the origin of assets will decrease over time. The longer the duration of a marriage, so the non-financial contribution of the poorer spouse will have increased, so that the scales of contribution will be better balanced.

When applying the divorce fiction, it is clear from the case law that the matrimonial home is a marital asset with special status (it does not matter in whose name the same is registered at the Land Registry), and each spouse will share the ownership of the home.

Please contact us to discuss if the merits of a claim for financial provision under the IPFDA 1975 if you are a spouse or former spouse of the deceased.

For more information contact John Lambe in our Contesting a Will department via email or phone on 01772 220 235. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Contesting a Will department here

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