Death in financial remedy proceedings. So, what next if death does us part?

Here’s an example for you. The parties relationship began in 1989, they married some years later and separated in 2019 – this is a long relationship between husband and wife of 30 years. Wife was diagnosed with an illness approx. 10 years ago but thankfully remains fit and well. Husband is in good health.

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These parties attempted mediation in 2020, and it took until 2023 before a financial agreement was reached and submitted to the court for approval. Both parties completed financial disclosure, endured the emotional and fiscal stress of FR proceedings and became overly familiar with their legal representatives. The parties inevitably faced the scripted telling off by the DJ at the FDR hearing in relation to the legal costs they had incurred and expected to incur up to and including a final hearing with a time estimate of 2 days.

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Putting stubbornness aside and accepting compromise where possible – the parties were able to reach an agreement which incorporated a property portfolio, lump sum order and pension sharing order. It took the legal representatives two months to finesse the terms and to ensure both parties were happy with the arrangements. The terms of the agreement were recorded in a consent order with a request to vacate the final hearing, and this was shared with the court for judicial approval.

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The husband dies less than a week after the order is submitted for approval. No one could have seen it coming. So, what next if death does us part? ?

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In this case, the husband dies (1) after an agreement has been reached but (2) before the agreement has been referred to a Judge and approved by the court and (3) before decree absolute/final order has been granted. The Matrimonial Causes Act 1973 provides remedies on divorce only, not death. The judge who would ultimately be reviewing the draft consent order via the HMCTS portal no longer had the jurisdiction to scrutinise the application. Scott Baker J said so eloquently in Amey v Amey [1992] ‘I cannot any longer exercise a discretion under S.25 of the MCA for the wife is dead’. Ultimately, wife's application for a financial order/Form A was dismissed and so was the parties draft consent order application. We're back at square one but the wife is now a widow, rather than an ex-spouse and so her next steps would be to consider the Inheritance (Family and Dependants) Act Claim 1975. The general considerations under S.3 of the Act are somewhat familiar to those under S.25 of the MCA:

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1. The financial resources and financial needs which the applicant has or is likely to have in the foreseeable future.
2. The financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the future.
3. Any obligations and responsibilities which the deceased had towards any applicant.
4. The size and nature of the net estate of the deceased.
5. Any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

The specific considerations under S.3 of the Act go even further to consider the age of the applicant, the duration of the marriage and the contributions made by the applicant to the welfare of the family of the deceased.

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Then you have the divorce hypothesis under S.3(2) of the Act. In the case of an application by the spouse of the deceased, the court shall also have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died, the marriage instead of being determined by death, had been terminated by a decree of divorce instead. The procedure to apply under the Inheritance (Family and Dependants) Act Claim 1975 falls under the CPR, rather than our beloved FPR though widow’s claims usually proceed in the Family Division of the High Court of Justice.

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Alternatively, if the FR proceedings had concluded and then a party died – the death could mean that the outcome should be altered and the person seeking to set aside the order would have to show that there has been a Barder event. A Barder event refers to something so supervening that it wholly invalidates the fundamental assumption on which the order was made. Cases such as Smith v Smith [1991], Barber v Barber [1993] and Critchell v Critchell [2016] are all examples of where death amounted to a Barder event, which has not been reasonably foreseeable. It is also worth recognising that a Barder event will only likely be arguable where the original award was based on needs, and those needs no longer exist – and where established, the award to the party who died will be presumed to meet the needs for the time they remained alive, considering any contributory factors. Death of a former spouse does not automatically invalidate the original FR order or outcome, but it is certainly a big red flag.

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I am certainly not trying to bump off any clients or their spouses within proceedings, but death and unforeseen circumstances can happen. It is important to understand where an order/agreement can remain effective and perhaps in my example, what the next steps are for a party who is required to return to the drawing board to resolve the financial arrangements after almost 3 years of negotiations.