Can a financial claim in divorce proceed after the death of either party?

The Supreme Court on 28 June concluded that it could not. 

This is on the basis that a financial claim on divorce is a personal claim which does not survive the death of either of the parties. The parties in the case in question were divorced in Pakistan, but the former wife was able to make a claim in England following a divorce abroad. However, before an order was made, the former husband died. The former wife applied for permission to pursue her claim after his death. Her case was that they accumulated significant wealth during the marriage. 

Her application was refused in July 2021. The judge acknowledged that the law following a case in 1957 was that a financial claim made in divorce proceedings cannot proceed after death. However, he believed that the decision in the 1957 case was wrong and granted permission to the former wife to go to the Supreme Court. 

In certain circumstances, death after a financial order has been made can lead to the order being set aside/appealed. These may be cases where the payee has had a claim based on needs, and has died shortly after the order has been made. Clearly a deceased payee has no needs. In those cases, the court can make a different order and so is in that sense making a financial order after death. There is thus a different treatment between cases in which death occurred just before trial and those in which death occurred shortly after. 

However, the cases affected would be limited to those in which the divorce had already been finalised by a decree absolute. Once one of the parties has died, it is not possible to proceed with the divorce itself and the court is unable to make an order until there is a conditional order on divorce (decree nisi). A final order of divorce (the decree absolute) has to have been made before an order is enforceable. In most cases, the decree absolute is not applied for until after the financial order has been made. 

Where the payer dies domiciled in England/Wales, the surviving spouse, or former spouse, can make a claim against the estate after death under the Inheritance Act 1975. Thus in practice the difficulty for claimants addressed by this case is where the divorce has been finalised, the payer dies and is not domiciled in this country. Under the Inheritance Act, a claim cannot proceed if the claimant has died. 

This decision means that by the circumstance of the husband dying before the hearing, rather than shortly after it, the wife has been prevented from continuing with her claim and as she had died too, she would not be able to leave her entitlement as a result of the marriage as she wished. 

Instead, the assets she would have been likely to share with her former husband will instead presumably be kept by his widow. 

As the delay in the final hearing appears to be as a result of issues with the former husband’s disclosure, this seems unfair, but the Court decided that as it was intended by Parliament that financial claims would end on death, to change this would require statutory reform. Reform would also need to address other legislation, such as the Inheritance Act.