What if my spouse and I have been divorced/broken up for years – am I able to make a claim against my former spouse’s estate?

Written by Terry Johansson | 31st July 2013

A former spouse is a person whose marriage with the deceased was, during the lifetime of the deceased, either dissolved by divorce or annulled in any country in which the divorce or annulment would be considered valid, according to the law. A divorce granted overseas will usually be considered valid if:

a)      Either party was habitually resident in the foreign country;

b)      Either party was domiciled in the foreign country; or

c)      Either party was a national of that country.

You can check on the status of your marriage: Click here for more information.

It can be very difficult for a family provision claim made against a former spouse’s estate to succeed especially where the parties have gone their own way and were financially dependent.

If a court order was made for the division of the matrimonial property while the deceased was alive, it will usually be difficult for the ex-spouse to make a successful Family Provision Act, and the court will take the terms of any property settlement into account when making a decision as to whether an Award should also be made from the estate.

A court may make an order excluding each former spouse from making a claim against one another’s estate.

However, an order may be made if a prior court made an order for the deceased spouse to make ongoing maintenance payments to the claimant, if the deceased did not disclose the true nature and extent of his / her assets at the time of the agreement or legal proceedings or where the deceased had not complied with the terms of a matrimonial property order.

Courts are hesitant to interfere with agreements reached by the parties and orders made by the Courts on the termination of a marriage or civil partnership.

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