rhw attend a lot of Wedding fairs. For some reason that seems to cause amusement and bemusement amongst many of those in attendance. Obviously we are not going along to try and get a head-start on marketing divorce proceedings (but we have, several times, been instructed on divorce from parents and other stallholders in attendance).
We focus more on Wills, Trusts, Pre-nups and in some cases Cohabitation Agreements. Bizarrely, a worryingly high number of people we speak to seem to be unaware they are entering into a legally binding agreement/contract when they say “I Do!”. We try to be a force for education on the matter! Marriage and Divorce change more than your marital status!
So on the subject of Wills, Marriage & Divorce……
Divorce – If You Already Have a Will
All of the provisions of the Will remain valid until the decree absolute is granted. If your Will leaves everything to your spouse, they will still inherit if you die before decree absolute. This is unlikely to be what you want. By updating your Will at an early stage of the divorce, you can ensure that your children or other chosen beneficiaries inherit your property and assets, rather than your spouse.
Of course, you will not know how the matrimonial property will ultimately be divided at this stage. However, your Will can be drafted in general terms, without specifying any particular assets and if necessary updated when the division is clear.
If You Do Not Have A Will
If you do not have a Will, then the intestacy rules will determine how your property is divided on your death.
Until the decree absolute has been granted, your spouse will be the main beneficiary under these rules. If you have children, your spouse will be entitled to all of your personal possessions, a legacy of £250,000 and half of the remainder (if any). The other half passes to your children. If there are no children, your spouse will receive the whole of your estate. Again, this is unlikely to be what you want.
By making a Will, you prevent these rules from taking effect and you can direct your property to the beneficiaries of your own choosing.
Jointly Owned Assets
It is likely that you own property jointly with your spouse.
Assets held jointly will usually pass automatically to the survivor, irrespective of the terms of any Will or the provisions of the intestacy rules.
If your house is owned a ‘joint tenants’ rather than as ‘tenants in common’, automatic transfer to the survivor will apply, something which you will want to avoid, if you are in the course of a divorce.
It is possible to convert ‘joint tenancy’ to ‘tenancy in common’ so do seek professional advice at the earliest opportunity. This will ensure that your share of joint property (particularly your house) passes in accordance with your Will.
Effect Of Divorce On Wills/Intestacy
Your divorce comes into effect on grant of the decree absolute.
Divorce does not revoke the parties’ existing Wills (unlike marriage, which automatically revokes any existing Will, in most circumstances). However, if your former spouse is appointed as an executor or trustee of your Will, this appointment will no longer take effect.
The position is similar if you do not leave a Will. For the purposes of the intestacy rules, a divorced spouse will be treated as having died on the date of decree absolute (and so will be bypassed in favour of children or other relatives).
An order of judicial separation does not affect the Wills of the parties. Therefore it is essential that new, up to date Wills are made.
But for the purposes of intestacy, a decree of judicial separation means that the separated spouse is treated as having died on the date of the decree.
Throughout this note, all references to a person’s ‘spouse’ includes reference to their civil partner also.