A recent case that appeared in the
media in May of 2013 highlights the real need for caution and attention to the
fine print when it comes to keeping a claim to matrimonial assets alive.
The case was that of a 71 year old
man, Mr McIntosh, whose divorce had been made final by decree absolute in 2009
after a 16 year marriage to his wife who later died in 2011.
At the time of the divorce, a
financial settlement order was also made by consent that provided for a “clean
break” whereby each spouse was to retain those assets already held in their
sole names and not be permitted to make any further financial claim against the
other – or the others estate – in the future.
This is not an unusual type of order to see.
The oddity here was that Mr McIntosh
claimed he did not realise that he was divorced and did not know what the
papers he had signed were, because he struggled with literacy. Supportive of this stated belief was the fact
that Mr McIntosh and his wife had continued to live together until Mrs
McIntosh’s later death from cancer some two years after the divorce.
The impact upon Mr McIntosh of being
both divorced and having the financial settlement order, was that there
was no legal basis for him to claim anything from his former wife’s
estate. His former wife’s estate in this
case included the matrimonial home itself which she had purchased in her sole
name and which is now worth in the region of £350,000.
The house went to Mrs McIntosh’s
estate on her death which means that Mrs McIntosh was either intestate or, if
she had made a Will, subsequent to the divorce, that it had not made provision
for her former spouse. As there had been
a divorce, Mr McIntosh was not her next of kin for intestacy purposes.
Was there anything Mr McIntosh could
do? The answer is no, albeit he did
attempt to do so by making an application to the Court to have the decree
absolute of his divorce set aside. His
application was refused and indeed such applications would very rarely be
granted. The exact reasons of Lord
Justice Ryder who dealt with the matter have yet to be given.
What should be taken away and filed from this case?
1. Do not sign anything that you
do not fully understand. You would fully
expect a Solicitor to say it, but it makes absolute sense to take independent
legal advice first to ensure a reasonable and fair outcome (which may or may
not include a right to claim after the other spouse’s death).
2. If you do want to achieve a full and
final financial settlement from a spouse then be aware that it is a two step
process that requires both (i) a
concluded divorce where a decree absolute has been pronounced and (ii) a
financial settlement order that has been approved and sealed by the
Court.
The
reasons for requiring both of these are:-
·
It
is not possible to have a financial settlement order without a divorce as a
Court cannot consider or approve a financial agreement reached as a Court Order
until such time as the mid-point (decree nisi) of a divorce has been reached
and
·
It
is only the decree absolute of a divorce that makes any financial order final
and binding
It is for the above two reasons, that
Mr McIntosh’s representatives attempted to attack the decree absolute itself
3. If you do want to benefit your former
spouse or provide for them upon your death but have made no specific provision
for this within a financial settlement order (which is possible) then look to
your Will provision and be aware that a divorce has the impact of rendering any
pre existing Will that benefits your former spouse as void insofar as any
reference to that individual appears upon the face of the Will.
So no, it is not death alone that
parts you from your matrimonial assets, it could well be a failure to obtain
and act upon sound legal advice!
Gorvins Solicitors
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