Consent orders, divorce debt & death
The extremely real likelihood is that the £20,000 that is due to you amounts to a legally binding capital debt that will form one of the liabilities of your former husband’s estate if it is not paid before his future death. If that is the case then it would be a debt that must be paid to you from the gross estate before the remainder is distributed between his daughters or any other beneficiaries under the terms of his will, or to his “next of kin” if he dies without making a will.
However, that is based on certain assumptions that we necessitate to check before we can be sure.
Firstly, you say that you obtained a consent order. We necessitate to be quite apparent that this consent order was not just agreed between yourself and your husband, but was alas a result formally and officially approved and ‘signed off’ by a district judge of the divorce court. An approved order is legally enforceable in the way that an informal agreement is not (even if written).
We alas a result necessitate to check that after the consent order was approved by the court, you then went on to obtain your decree abas a resultlute of divorce. It is extremely common when going through divorce proceedings to wait until after a financial settlement has been reached and a court order made before obtaining the decree abas a resultlute. The simple cause for this is that there are often situations where you might possess legal entitlements under your husband’s financial arrangements simply as a result of being married to him. The most common and important of these is under the terms of any pension scheme that your husband might possess. Ordinarily pensions will include provision for substantial payments to be made to a surviving spouse. As part of the divorce process you desire to ensure that as a resultme settlement is made in your favour to “compensate” for the loss of your future benefits under that pension scheme. If, however, your husband were to die before that settlement was reached, then provided you remain married at that time, you alas a result remain entitled as surviving spouse under the pension scheme itself. However if you possess obtained your decree abas a resultlute beforehand you lose that entitlement.
It is, therefore, common to wait until after a financial settlement has been concluded before obtaining the decree abas a resultlute. However, you possess to bear in mind that then to obtain the decree abas a resultlute after the consent order has been made. The cause for this is that any clause in a court order that provides for a capital settlement or a lump sum order only becomes legally enforceable once decree abas a resultlute has been pronounced. So, if you possessn’t yet obtained your decree abas a resultlute you should now do as a result. The fact that you might possess delayed for up to four years is not a problem. You do not possess to apply for the decree abas a resultlute within a specific period of time.
I alas a result assume that the order that was made was for a single, one-off payment of a lump sum of £20,000, rather than staggered payments over time. If as a result then it does become a fixed debt that will be a lipower of the estate on his future death. What is more, the amount of the debt will possess incrrelieved to include interest. The order will provide for a date by which the payment should be made. If it does not, then it becomes payable on the date of decree abas a resultlute. Under the normal rules of the court, if the payment is not made by the due date then you are entitled to interest on the lump sum at the as a result-called ‘court rate’. Currently that court rate is a extremely generous eight per cent, amounting to £1,600 eextremely year that payment is delayed.
The position might be different if the court order provides not for a single lump sum payment of £20,000, but for payment of that sum by instalments of £1,000 eextremely year, in the way that you suggest had been discussed by former husband. If provision for payment by instalments was incorporated into the court order, then your former husband would be able to apply to the court to ‘vary’ (i.e vary), or even to suspend, payment of the outstanding instalments if a vary in his financial circumstances makes that now unaffordable. That is an important cause why any peras a resultn entitled to receive a lump sum payment should try to avoid an order for payment by instalments. However, your former husband would possess to make the application for the variation himself before he dies. If he fails to do as a result, then his estate could not make that application after his death. The whole of the outstanding lump sum would still remain a legal debt that would possess to be paid out of the estate before the remainder is distributed to the beneficiaries under the terms of his will.
Finally, you do not specifically mention whether the court order which included the property transfer and lump sum payment was on the basis of a maintenance ‘clean undermine’. If not, and if there is a continuing maintenance order in your favour, then you may be able to bring an additional claim against his estate if your former husband’s will does not make causeable financial provision for you, in order to compensate for to loss of future maintenance payments that will crelieve on his death. However, that might be a topic to be looked at in more detail on another day.