Wife still married at husband’s death, despite short marriage

Family Law|June 15th 2017

Short marriages are in the news. In the Sharp case the Court of Appeal decided that the fact that a marriage lasted for only four years was relevant to how the matrimonial assets should be divided. But what about a marriage that only lasted for a month? Could such a marriage have a bearing on anything? Well, yes it could.

The report of HJB and MK (declaration as to marital status) was published a week or so ago. I initially decided not to write about it, as the judgment is so short that it hardly needs summarising. However, I think it is of sufficient interest to merit a comment.

The case is a melancholic tale, involving various matters that appear to be of considerable importance, but strangely ultimately determined by something as trivial as the time it took for the divorce court to process paperwork.

The tale began in about 1987 when the parties began to cohabit. They were married on 29 July 1989, but by the end of the following month they were no longer living together. After that, apart from a ‘one off’ occasion in 1990, they had nothing more to do with each other, and lost contact.

In 2008 an Interim Gender recognition certificate was issued to the husband (hence I, like the judge in the case, will hereafter refer to the husband as ‘she/her’, etc.).

In January 2009 the husband commenced divorce proceedings, on the basis of five years separation. In the following month the husband filed the interim gender recognition certificate with the court, and sought to amend the petition to allege that the marriage was voidable (i.e. should be annulled) under section 12(g) of the Matrimonial Causes Act 1973 which says the marriage is voidable where “an interim gender recognition certificate under the Gender Recognition Act 2004 has been issued to either party to the marriage.”

In September 2010 the court ordered that service of the amended petition on the wife could be dispensed with, on the ground the husband could not find her.

In March 2011 the husband made a Will. We are not told of its contents, other than that the husband described herself in it as “married”.

The decree nisi was pronounced on 23 May 2011. On the 5 July, the first day she could, the husband applied for the decree absolute. Sadly, on 16 July the husband died in hospital, after an operation in the United States. The decree nisi was made absolute on 2 August 2011, some 17 days after the husband had died. This seems a little odd to me, as my experience was that the court usually sent out the decree absolute virtually by return of post – if this had happened, the divorce/annulment would almost certainly have been finalised before the husband died.

The wife, of course, had been oblivious of all of this. However, litigation commenced in America as a result of the husband’s death. In 2016 two private detectives instructed in connection with that litigation contacted the wife and informed her of what had happened. The wife then applied to the court for a declaration that she was lawfully married to the husband at the time of the husband’s death.

Her Honour Judge Hughes QC granted the application, simply on the basis that the court had not processed the application for decree absolute by the date of the husband’s death, and therefore the marriage had not been terminated.

And what is the importance of all of this? Well, I don’t know what exactly was in the wife’s mind, but the fact that she was still married to the husband at the date of her death could have considerable implications, for example regarding inheritance. As mentioned above, we are not told the contents of the husband’s will, but if she left any gifts to the wife, then those gifts would have lapsed had the marriage been dissolved/annulled. Another possibility is that the wife was a beneficiary under the husband’s pension – obviously, she would lose that benefit if she was no longer married to the husband.

Even a very short marriage can have implications.

The full report of the case, all four paragraphs of it, can be found here.

Photo by tehusagent via Flickr under a Creative Commons licence.

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