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When Divorce Is Not the End

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When divorce is not the end.

All family lawyers will have anecdotes of clients who, even after difficult divorces, will reunite with their former spouse.  This can have some unintended consequences.

Some reunited couples will of course remarry, and will therefore regain all of the financial protections of married couples. However, increasingly, divorced couples who reunite will not remarry but will cohabit. The outcomes then in a final separation either in life or when one partner dies may be rather surprising.

The recent case of Mr Fryer and  Ms Chekov illustrates the problems which can arise when legal affairs are not kept up to date.  In this case Mr Fryer and Ms Chekov originally married in the late 1970s and divorced in 1981.  As a result of their divorce a court order was made preventing either of them from making financial claims against the estate of the other on death unless they remarried which of course they did not.  Such an order is very common in divorce cases. 

Mr Fryer made his will in January 1980 leaving his estate to his two sons from a previous relationship.  At no point did he up date this will and so when he died in 2014 his sons believed that they were entitled to his whole estate.  However since the finalising of the terms of their divorce in 1982 and before Mr Fryer died in 2014, Mr Fryer and Ms Chekov came to be living in the same house.  Ms Chekov’s case is that they were cohabiting there.  Mr Fryer’s sons tried to have Ms Chekov’s case for financial assistance from the estate of Mr Fryer dismissed on the basis that Ms Chekov did not have the right to bring a claim as a result of the court order made in the divorce proceedings.  However the Court has decided that Ms Chekov can bring her claim against Mr Fryer’s estate because the fact that an order was made in their divorce has been superseded by their later cohabitation.

What would Mr Fryer have wanted?  Was Mr Fryer satisfied that the will in January 1980 to leave everything to his sons still represented his wishes?  Who can say?  We don’t yet know what Ms Chekov will receive from the estate; we do know however that this situation could have been avoided with proper planning.

When Mr Fryer and Ms Chekov began cohabiting, they could have entered into a Cohabitation Agreement. Such an agreement would not have prevented Ms Chekov making her application but it would have provided evidence of the financial provision made available to her by Mr Fryer, or would have provided evidence of how they maintained separate financial lives.

By keeping his will up to date, Mr Fryer could have benefited from advice as to how to ensure that Ms Chekov’s potential for claims against his estate were minimized. 

Whilst it may seem unromantic to some to suggest that all cohabiting couples should consider entering into cohabitation agreements, where one or both have children from previous relationships it can be vital to do so.

At John Hodge Solicitors our team of family law experts are happy to offer a free initial appointment to discuss your case in more detail.  Working alongside our colleagues in our Wills and Probate team we can provide legal support whatever changes may happen in your life.

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