Many divorcing couples agree that the family home should not be sold until a future event occurs, such as the youngest child finishing education. But what happens if one party dies before that sale takes place?
A recent case, KC v CO (deceased) [2026] EWFC 165 (B), highlights the importance of getting the drafting right.
In this case, the parties agreed a consent order under which the family home would not be sold until either the youngest child completed full-time education or the wife’s death. Although the order addressed ownership of the property, it did not include an express order for sale.
That distinction proved critical. The order restricted when the property could be sold, but it did not create a mechanism requiring a sale once a trigger event had occurred.
The wife died in 2012. More than a decade later, the husband applied to the Family Court for an order for sale so that he could realise his interest, but the court refused.
The judge decided that an order for sale at that time would be making an order that arose as a result of the marriage. Following from a previous Supreme Court decision, the courts have re-affirmed that the power to grant financial relief at the end of a marriage can only be exercised between living parties. As the wife had died, the Family Court no longer had jurisdiction to make the order sought.
Why does this matter?
The case is a reminder that even carefully negotiated financial settlements can create difficulties years later if future events have not been fully anticipated.
In particular:
- a financial order may not operate in the way the parties expect following the death of one party;
- the Family Court's powers are not always available after death;
- the death of a party may change the route to enforcement, even where an underlying property interest remains; and
- further litigation may be required under a different legal framework.
Importantly, the husband had not lost his underlying interest in the property. The problem was that, following the wife's death, the remedy he was seeking was no longer available under the legislation that governs divorce. Instead, he would need to pursue a separate civil claim in the County Court.
In practical terms, that meant additional delay, cost and uncertainty more than 20 years after the original financial order was made.
The key takeaway
When drafting financial agreements, it is important to think beyond the immediate settlement and consider what should happen if circumstances change in the future, including the death of one of the parties.
Where a property is to be retained for a period of time and sold later, the order should be drafted as clearly as possible to deal with the trigger events, the mechanics of sale, who may apply to enforce the order, and what should happen if either party dies before the sale takes place.
At Stevens & Bolton, we regularly advise on financial settlements and the drafting of consent orders to help ensure they remain effective long after the divorce itself has concluded.
