What Happens If One Member Of A Couple Dies During The Divorce Process?

Written on behalf of Arbesman Hamilton LLP

There are countless variables that impact our day-to-day lives, many of which are out of our control. Ironically, one of these variables is death. Of course, the death of a spouse is a devastating event in a couple’s life. However, it may raise an interesting problem in cases where a divorce is pending, specifically whether the couple should be considered married or divorced at the time of death. This can have an impact on how the estate of the deceased is administered. The Court of Appeal for Ontario examined this type of situation in a 2015 decision that we thought would be interesting to review.

The divorce

The court’s summary of the facts begins with the husband requesting a divorce from the wife on June 10, 2013. The divorce was granted, but on July 4 of that same year the wife brought a motion and obtained an order staying the divorce “pending further court order.” This stay was in effect when the husband died. The wife, who for reasons left unexplained, did not wish to get divorced, requests the motion judge to discontinue or terminate the divorce. In the alternative, she asked for a declaration that they had not been divorced at all, and that the marriage was terminated upon the husband’s death. The motion judge dismissed the motion, which the wife appealed.

The court of appeal weighs in

The court overturned the motion judge’s decision. In providing its reasoning, the court turned to the province’s Divorce Act which states that “On taking effect, a divorce granted under this Act dissolves the marriage of the spouses.” Section 12(1) of the Act states that a divorce takes effect on the 31st day following the judgment granting the divorce. During the intervening period the parties are still married. During this time the judgment granting the divorce cannot take effect. The court cited a number of decisions to support this reasoning.

In the situation at hand, the divorce order had been stayed until further order of the court. This prevented the divorce from taking effect and the marriage being dissolved. The stay had not been lifted at the time of the husband’s death. As a result, the court determined that the marriage ended as a result of the husband’s death rather than by divorce. The court decided to make the divorce order permanently stayed. The court added that its decision was without prejudice to any actions the wife may want to bring against the estate of her husband.

Both divorces and estate disputes are complicated, emotionally charged events that can drag out for some time, causing financial harm to the estate and all those involved. When dealing with matters of estate litigation, the team at Arbesman Hamilton LLP looks to resolve disputes through out-of-court settlements, mediations, and other alternative dispute resolution methods. That said, we are ready to represent you in litigation when necessary. When it comes to divorce, we seek to make the process easier by providing outstanding legal guidance and ensuring our client’s interests and rights are protected so they can move on with their lives. Please call us at 416-481-5604 or reach us online to discuss your case today.