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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


Legal implications

  • Bespoke
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22 Apr 12 #325719 by Bespoke
Topic started by Bespoke
Hello Could anyone answer this question please.

What are the legal implications on the death of a spouse after Nisi, after a Consent Order but before absolute? The consent order says SUBJECT TO Decree Absolute.

Thankyou

  • hadenoughnow
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22 Apr 12 #325730 by hadenoughnow
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Erm. An interesting question and one of te reasons people are advised to delay DA until they have all financial stuff in place.

Is this a situation you face?

These are just my musings.

If you do not have the Decree Absolute you are still married.

The Consent Order is activated by the DA ... so if there is no DA then it is not active.

If you are still married and the deceased spouse has not made a will, you presumably would still automatically inherit and be able to claim widows pension etc.

If there is a will leaving assets elsewhere you may be possibly be able to challenge it.

Perhaps one of the legal eagles on the site can tell us the real answer .. if there is one.

Hadenoughnow

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22 Apr 12 #325734 by dukey
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I can`t give a legal answer.

It would actually constitute a Barder event, its the kind of situation you would need to seek counsel for, at the end of the day a judge would need to decide what should happen.

This did actually happen a couple of years ago and the surviving spouse made application to have the order sealed in the agreed terms, the judge refused, i would guess it would be sorted along the lines of what Hadenoughnow says.

  • LittleMrMike
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22 Apr 12 #325737 by LittleMrMike
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It usually does say SUBJECT TO Decree Absolute. The reason is that the order does not take effect until after DA.
So, as hadenoughnow correctly says, the parties are still technically married between the Decree Nisi and the Decree Absolute. For this reason it is desirable that spouses in the throes of divorce should really make a new will straight away and not wait for the divorce to become final.
A provision in a will for a divorced wife is normally invalid, but that takes effect only after the absolute. Similarly, until the Absolute, the parties are still married and could in theory still benefit under an intestacy.
But really, the death of a spouse is such a fundamental change in circumstances that I think it would almost always be appropriate to have the order set aside, even perhaps after the absolute.
Otherwise any provision for the wife might devolve on some distant relative, unconnected with the divorce.

In the classic, and very tragic, case of Barder, the order had taken effect, and within a short time the ex wife, who benefited under the divorce, killed the children and committed suicide. The result would have been that the financial provision for the wife went to mother in law - not quite what was intended. The husband successfully applied for the order to be annulled. As a result the term '' Barder event '' came into being, meaning an event which radically changes the circumstances to the extent that it would be inappropriate to adhere to the terms of the original order.
LMM

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22 Apr 12 #325742 by Bespoke
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Thankyou so much.

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