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  1. Law
June 13, 2013

A mysterious divorce and lingering death provoke a legal wrangle

By Spear's

It was an intriguing story. A husband who nursed his wife through her final illness learned subsequently that she’d divorced him over a year earlier without his knowledge. How could this have happened?

Lord Justice Ryder clearly isn’t convinced by the husband’s attempts to argue that the marriage be reinstated retrospectively. The case came before him in the Court of Appeal recently and he told the husband he was not able to help him. He reserved his judgment so we can only speculate at the moment as to his reasons for what appears on the face of it a harsh decision.

Here, briefly, are the facts. Desmond McIntosh met his future wife Jennifer in the Caribbean and they married in 1993. Jennifer was fifteen years older than Desmond. They set up home in Thamesmead, South London.

At some point it seems Jennifer had had enough and wanted a divorce. Desmond claims that the didn’t know what he was signing when he was presented with some forms by her in 2009. He says his literary skills are extremely poor. He nursed Jennifer for the last two years of her life and she died of cancer in February 2011. The matrimonial home, worth £350,000 was in her name and Desmond is left with nothing.

In need

Had the couple divorced in the conventional way, the Court would have been bound to have made some financial provision for Desmond, notwithstanding that the house had been bought with Jennifer’s money and stayed in her name. After a sixteen-year marriage, the starting point would be an equal division of the assets although this can be varied depending on the circumstances.

Mr McIntosh appears to have a ‘need’ and this is one of the most important factors that the Court takes into account when dealing with financial claims on divorce. Furthermore, death ended Jennifer’s ‘need’; callous as it may seem, there have been numerous cases where surviving spouses have sought to set aside divorce settlements where the other party has died unexpectedly shortly afterwards.

Read more: The five legal cases that have shaped modern divorce

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Has Mr McIntosh behaved badly? We don’t know. But behaviour rarely makes a difference to financial provision on divorce anyway. Clients are often surprised by this but it’s very unusual for the Court to take it into account.

For whatever reason, it’s clear that the Judge did not warm to Desmond McIntosh’s case and he was refused leave to appeal to the Supreme Court. Even where mistake or fraud is proved, it is very difficult to reinstate a marriage that has been dissolved and Jennifer’s death has probably made it impossible.

Tricked?

We don’t know whether Jennifer tricked him into signing away his financial claims which would otherwise have survived her death. If he was not barred then an application under the Inheritance Act would have been an obvious course of action for him.

This legislation enables cohabitees to make a claim against the estate of the other on their death. Spouses have an automatic right to apply under the Inheritance Act, but not ex-spouses or cohabitees, who need to show they’ve been financially dependant on the deceased for at least two years.

Read more on wills from Spear’s

Secondly, there’s the house in Jennifer’s name. The law that applies to unmarried couples is something of a moving target. There’s still no proper legislation in place to govern the claims for cohabiting couples who separate in life so, over the years, judges have tended to push the envelope and apply – some lawyers would say misapply – the law to provide for someone they regard as deserving.

This is done by concluding that there was a trust in place in relation to ownership of a home that’s in the sole name of one of them. Often this approach is adopted where a woman has lived with a man for a number of years and would otherwise find herself with nothing when the relationship came to an end. Mr McIntosh says that his wife promised that he would have half the house and, if that could be proved in some way, it would survive her death and the divorce.

So does Mr McIntosh have a claim that has survived his ex wife’s death? It’s hard to say for sure. One thing that is certain is that some judges still tend to view claims brought by women differently from those brought by men. Had Mr McIntosh been 71, and had Jennifer nursed him for his final two years after a sixteen-year marriage, I suspect that she would have found it easier to salvage something from the wreckage.

Philippa Dolan is a partner at law firm Ashfords

Read more on divorce law from Spear’s

 
 
 

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