Wills, Divorce and Separation

May 2016

Divorce and Separation can be extremely distressing and can totally disrupt the assumptions upon which you have made your plans for the future. Your family circumstances, your home and your assets are all going to be affected and this in turn may affect the provisions in any Will you have made. If you are in this unhappy situation it is therefore important that you review your future planning by making a new Will.

However because of the nature of divorce, the fact that divorces sometimes can take a very long time to go through and the fact that the final Financial and Property Orders can substantially alter the balance of ownership of property and assets between the divorcing parties it is wise to make a holding Will at the beginning of divorce proceedings and then a more permanent Will once the divorce and its financial and property issues has finished.

In this connection it is important to bear in mind that until Decree Absolute (the final stage in a divorce) any spouse mentioned in a pre-existing Will still inherits under that Will or is likely to take the whole or the major part of the estate under the Intestacy rules if no Will has been made which is not what most divorcing people would want.

The only way to guard against this therefore is to make a holding Will at the inception of divorce proceedings and to then make a further more permanent Will once the final Financial and Property Orders have been made by the Divorce Court. The position with regard to separation from a spouse without divorce can be equally unsatisfactory.  Separation will have absolutely no effect on a pre-existing Will and the other spouse will still inherit under the Will even though the separation may have been of many years standing. Even if no Will has been made the surviving spouse will still inherit under the Intestacy rules. However even if the divorcing spouse safeguards the position by making a Will that spouse’s wishes can still be thwarted if that spouse has not altered the way in which the home or other real property is owned.

Houses and other real property are owned either as ‘Joint Tenants’ or as ‘Tenants in Common’.  If owned as ‘Joint Tenants’ this means that notwithstanding your Will it will pass automatically to the surviving spouse. The only way to address this is for the ‘Joint Tenancy’ to be turned into a ‘Tenancy in Common’ which will then mean that it can be left in accordance with the terms of the Will. Finally many divorcing couples go on to marry again or enter into a new civil partnership.

If they do, all of the safeguards made by making a Will during the divorce proceedings could be undone because Wills are revoked by marriage or civil partnerships (unless made in contemplation of same) and in these circumstances it would be necessary to make a new Will. A new Will would also be advisable if, couples commence a new relationship outside of remarriage or new civil partnership because such a partner will not inherit form a deceased partner, no matter how many years they have been together  other than through a Will.

John Mullaney
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.