What Happens If One Party Passes Away During A Divorce Proceeding: Part II

Published date14 June 2022
Subject MatterLitigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Trials & Appeals & Compensation, Divorce, Wills/ Intestacy/ Estate Planning
Law FirmCharles Russell Speechlys LLP
AuthorRay Ng


Part I took as its starting point, the following proposition:

"If a spouse dies halfway through the divorce proceedings, the divorce proceedings will be abated."

This proposition has been accepted and applied in England since 1957. It is the product of a decision of the English Court of Appeal: Sugden v Sugden [1957] P 120.

In Hong Kong, Sugden has also been followed and applied - most significantly and recently by the Hong Kong Court of Appeal, in Chan Siu Man v Lam Jenny & Ors [2013] HKCU 2949.

However, this state of affairs may not continue for much longer. Recent developments in English law herald a prospect of imminent and radical change for both jurisdictions, as discussed below.

The Sugden position

In Sugden, the court held that the intervening death of one spouse meant that the surviving spouse was no longer able to pursue a matrimonial claim for ancillary relief.

In such circumstances, as explained in Part I, the surviving spouse is left with recourse to:

  • testamentary bequests if any (unlikely - as pointed out in Part 1, once there is an impending divorce any Will should be [re]drafted to exclude the spouse);

  • their entitlement to half the estate under the rules of intestacy (if, notwithstanding the impending divorce, the deceased had neglected to make any Will); or

  • a dependency claim under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481.

Whereas the first two options will present themselves by default, the third option entails a decision, forced upon the surviving spouse, to embark on litigation that is often speculative and expensive.

Death is not always the end

Faced with such invidious options, a surviving spouse may well ask: does death invariably lead to abatement in every case?

In Barder v Caluori [1988] AC 20, Lord Brandon held that

".there is no general rule that where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it."1

For Lord Brandon, "the real question" was

".whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken.the answer to that question.depends on the nature of the further proceedings sought to be taken.[and] the true construction of the relevant statutory provisions [and/or] of a particular order made under them."2

Nothing ends a marriage like death

Two cases in which matrimonial proceedings were abated by death nevertheless serve to illustrate Lord Brandon's point.

In Stanhope v Stanhope (1886) 11 PD 103, the terms of a family trust provided that if H died, his widow would become entitled to certain interests under the trust. W having been unfaithful, H petitioned for...

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