Many spouses and civil partners who are in the process of obtaining a divorce do not realise that until the Court has pronounced your divorce with a formal Court Order known as a Decree Absolute on marriage and Dissolution in a civil partnership that they are still legally married/in a formal civil partnership.

Therefore, it is crucial for anyone in this position to know that should one of them die during divorce proceedings, even when the Decree Nisi has been pronounced, they are still legally married. This is particularly important in the context of Will drafting.

Therefore, if your spouse or civil partner passes away before the pronouncement of Decree Absolute or Dissolution and has not made a Will, the survivor will still inherit as their ‘spouse’ under the intestacy rules which is generally not what you would want to happen.

It is also extremely important to know and understand that Divorce and Dissolution proceedings only bring about the end of the marriage or civil partnership. They do not deal with the distribution and split of financial matters. This must be dealt with alongside the Divorce/Dissolution and any Agreement reached should be contained within a financial Consent Order.

In the context of Will drafting, it is crucial to know and understand the extent and composition of a person’s estate. If you simply divorce or have your civil partnership brought to an end by way of a Dissolution Agreement this does not prevent you/your former partner from being able to still bring claims of a financial nature after divorce/ dissolution at some point in the future/ or make a claim against your estate on death. To enable income, pensions, assets to be distributed following the breakdown of the marriage or civil partnership and to prevent future financial claims being brought, a Financial Consent Order must be obtained and the existence of such disclosed to your Will writer who will need this information.

There is no time limit upon which a claim of a financial nature can be made during your lifetime if no Consent Order has been made, ultimately, the door remains ‘open’ for your former partner to bring financial claims years down the line. They can also then potentially bring a claim against your estate on death, however, they would be bound by the same rules that apply to all in this situation.

Many clients do not wish to accommodate for their former partner in their Will if they are looking to obtain a Divorce or Dissolution or even where they are not but perhaps have formally separated. Anyone contemplating or going through a separation should therefore make a new Will to ensure their surviving former partner does not automatically inherit should they pass away.