Wednesday, November 19, 2014

Family Lore Clinic: Enforcing a consent order after the other party has died


As usual, the term 'consent order' is taken here to mean the order setting out the agreed financial/property settlement on divorce. In fact, what follows applies equally if the settlement order is not made by agreement, but imposed upon the parties by the court.

So long as the divorce has been finalised, the death of either party will generally have no effect upon the terms of the order, and those terms can therefore still be enforced. The exception to this is any maintenance order, which will terminate upon the death of either party (although any unpaid arrears of maintenance prior to the death should still be recoverable). Other orders, such as orders requiring one party to pay a lump sum of money to the other, can still be enforced.

When a person dies their financial affairs will be handled by their personal representative, who will administer the estate and apply for probate. It will be their responsibility to discharge any liability of the deceased party under a consent order. Accordingly, if you want to enforce an order against a deceased party, you should contact their personal representative. The personal representative will usually be a close relative of the deceased, or their lawyer. If probate has been granted, you can find out who they are by searching for a will or probate record here, although you may need to act before probate is granted, as the deceased's estate can be distributed once probate has been granted.

If you require further information or advice regarding enforcing a consent order where the other party has died, you should consult a specialist family lawyer.

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