Sun | Sep 22, 2019

Laws of Eve | How does death affect divorce proceedings?

Published:Monday | August 12, 2019 | 12:16 AM

I received a copy of a notice issued by the Registrar of the Supreme Court dated July 30, 2019 that states as follows:

“The Honourable Chief Justice, Mr Bryan Sykes, OJ, CD, has mandated that the legal vacation which runs from 2nd August 2019 to 13th September 2019, is to be used by Judges to attend to outstanding judgments. There will be no divorce matters placed before Judges for consideration during this period.”

I will refrain from making any comments via this medium about my views concerning the court’s imperatives, how they are being pursued or the effect of adding a six-week delay to divorce proceedings that involve litigants who are anxiously awaiting a clean break from their marriages. Instead, despite the pessimism it may betray, my first thought when I read the notice was, “What will happen if one of the parties dies before the Decree Absolute is granted?”

As the Matrimonial Causes Act governs divorces in Jamaica, I checked that act to see if there is any provision that squarely answers the question. There is none, although the word ‘death’ can be found in six places in the act. The reference to death is confined to instances when a marriage is dissolved because one party has not been seen or heard from for at least seven years and is presumed to have died.

I then thought about the fact that the only parties to a divorce petition are the husband and the wife, and that a divorce is not concluded until a Decree Absolute is granted. If one party dies while the proceedings are pending, it would appear to me that the divorce proceedings would also die because the marriage would have been terminated by death and not by divorce. The surviving spouse would then become a widow or a widower, so the relevant inheritance rights of that widow or widower would need to be considered.

For example, if the deceased spouse did not leave behind a will, according to the Intestates (Estates and Property Charges) Act, which makes no distinction between a spouse and an estranged spouse, the surviving spouse would inherit the lion’s share of the deceased spouse’s estate. It is hardly likely that the deceased spouse would have intended that consequence, since divorce proceedings were in train at the time of his or her death. If there is a will that makes no, or inadequate, financial provision for the widow or widower, there may even be a claim under the Inheritance (Provision for Family and Dependants) Act for the deceased spouse’s estate to make adequate financial provision for that widow or widower. (These things can become very complicated!)

OTHER PROCEEDINGS

Typically, divorce proceedings do not stand alone. Financial proceedings, such as claims for spousal or child support, and matrimonial property proceedings are often being pursued in separate claims while divorce proceedings are pending. The question of what happens to those claims if one spouse dies before they are concluded is important.

Generally, in civil claims, if one party dies, the surviving party may be able to seek directions from the court to enable the proceedings to be carried on. In such cases, the court action will be stayed until the deceased party’s personal representative (an executor or administrator) or some other person who is competent to carry on the proceedings is substituted in the court action. The action may then proceed, but if the deceased person was the claimant in the proceedings, and no steps are taken to appoint someone to carry on the proceedings, the defendant may make an application to strike out the claim.

In cases where maintenance orders are made and one party then dies, what becomes of the obligation to pay maintenance will depend on whether it is the recipient or the paying party who has died. Where the recipient dies, the obligation normally ceases; but where the paying party dies, the paying party’s estate should still be liable to make the payments.

There are some fascinating cases that help us to understand what should happen if one spouse dies after a court order was made in financial proceedings. The judgment in the case of Barder v Colouri [1988] AC 20 provides one example. In that case, the wife killed the children and committed suicide within 28 days after an order was made by consent that the husband should transfer his interest in the home to her. The husband applied for leave to appeal that order out of time and he was successful despite arguments that the claim should not be allowed to proceed after her death.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.