The other woman and the perils of DIY divorce

family law

Here’s an interesting, and surely far from unique, scenario. What happens when someone dies, having left their spouse to go to live with a new partner, but not separated their finances from those of their spouse? The case of Martin v Williams is an object lesson on the perils of a “do it yourself” divorce arrangement.

The essential facts of the case were as follows:

  1. Until the time of his death Mr Martin was married to Mrs Martin.
  2. Mrs Martin lived in a property that was owned by herself and Mr Martin as ‘joint tenants’. This meant that when Mr Martin died the property passed automatically to Mrs Martin.
  3. Mr Martin left Mrs Martin in 1994, and began living with Mrs Williams.
  4. From 2009 Mr Martin and Mrs Williams lived in a property in Dorchester, which they owned as ‘tenants in common’, with shares of 50 per cent each. This meant that when Mr Martin died his 50 per cent share would not automatically pass to Mrs Williams, but would instead pass under his estate.
  5. Unless I have missed it, the report does not state when Mr Martin died, but Mrs Martin took out a grant of probate on 1 September 2014.
  6. By his Will, which was made in 1986, Mr Martin left his residuary estate entirely to Mrs Martin. Thus, his 50 per cent share of the Dorchester property, where Mrs Williams was living, would have passed by his Will to Mrs Martin.
  7. Mrs Williams made a claim for provision from Mr Martin’s estate under the Inheritance (Provision for Family and Dependants) Act 1975.
  8. The court upheld that claim and ordered that Mr Martin’s 50 per cent share in the Dorchester property should be transferred to Mrs Williams.
  9. Mrs Martin appealed against that decision.

The appeal went before Mr Justice Marcus Smith in the Chancery Division of the High Court. He found in Mrs Martin’s favour in respect of three of her grounds of appeal:

Firstly, the court, in considering the claim, had to take into account Mrs Williams’ financial resources and needs. The court was aware that she had a 50 per cent interest in a property in Bristol that passed to her when her father died in 2008. However, the judge at the first hearing had disregarded this, apparently because Mrs Williams’ sister was living in the property and he considered that Mrs Williams should not be forced to evict her in order to realise her interest in the property. Mr Justice Smith held that the judge had been wrong to disregard Mrs Williams’ interest in this property – the property could, for example, be used to raise capital, without Mrs Williams having to evict her sister.

Secondly, the court had to take into account Mrs Martin’s financial resources and needs, but the judge at the first hearing had not accepted the evidence that Mrs Martin gave in this regard, despite that evidence going unchallenged. Mr Justice Smith held that the judge’s conclusions in relation to Mrs. Martin’s needs were unsupported.

Thirdly, Mr Justice Smith accepted Mrs Martin’s contention that the award to Mrs Williams was in excess of what was necessary to meet her needs. What the judge appeared to have done, he said, was simply to have assumed that Mrs Martin had enough, and that Mrs Williams’ needs therefore overrode those of Mrs. Martin.

Those conclusions, however, did not mean that Mrs Williams should be left with nothing. Mr Justice Smith still found that Mr Martin’s Will had not made reasonable financial provision for Mrs Williams’ maintenance, as required by the Act.

The question then was: what provision should be made? To answer this Mr Justice Smith looked at the circumstances of both parties, but in particular Mrs Williams’ housing needs. Those needs, he said, could be met by using up the remaining equity in the Bristol property and Mrs Williams’ 50 per cent share in the Dorchester property. However, he did not consider that this would be reasonable financial provision. Mrs Williams was living in the Dorchester property, the home she shared with Mr Martin. In his judgment not only should she be able to reside there rent free, she should also be able to choose the terms upon which she left the property. The answer would be to provide her with a life interest in the 50 per cent share in the property that had belonged to Mr Martin, so that she could remain there as long as she wished, with Mr Martin’s share passing to Mrs Martin when the life interest comes to an end. This, said Mr Justice Smith, would prevent Mrs Martin from seeking to sell the property over Mrs Williams’ head, but did not involve the excessive provision that would be the case were Mr Martin’s entire interest to be made over to Mrs Williams.

Hopefully, that will be the end of the matter. The case is, however, a salutary lesson to anyone leaving their spouse to live with a new partner – I think we can be sure that Mr Martin would not have wanted such a scenario to play out after his death. The moral therefore is simple: take proper legal advice!

The full report of Martin v Williams can be found here.

Photo of Dorchester by Ben Sutherland via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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3 comments

Mehul - March 16, 2017 at 6:37pm

I think there is irony in there somewhere, even after his death they fight over him…ahem!

Danny - March 17, 2017 at 4:57am

It’s pretty obvious — this doesn’t suggest one needs a lawyer to divorce.

It is instead a very strong testimony to the idea of simply NOT MARRYING in the first place!

No wonder the number of couples just “living together” (co-habiting, to a lawyer) is on the rise — and the number of marriages is going down.

Overall, it is probably the most reasonable position.

Erin - March 17, 2017 at 5:05pm

Why, oh why don’t people update their wills after a divorce? I will never understand that.

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