4. What will happen if a party passes away when the decree nisi was granted but is not made absolute?
If a party to the marriage passes away after the decree nisi was granted but before it was made absolute, the petition and decree nisi will not be revoked. The action and proceedings for divorce will end when a party passes away. The end of the action also means that the decree nisi will not be made absolute.
A decree nisi is not the final order declaring that a marriage is dissolved. If a spouse passes away before the decree is made absolute, the will of the deceased spouse (if any) will still be executed as if the couple were still married. This means the surviving spouse will be entitled to the benefits provided under the deceased spouse’s will (if any) as the widow or widower of the deceased.
Once one of the spouses dies, the surviving spouse will not be able to make any financial claims against the estate of the deceased spouse under the divorce proceedings. Instead, the surviving spouse may be able to claim reasonable financial provision from the deceased spouse’s estate under the Inheritance (Provision for Family and Dependents) Ordinance (Cap. 481). The surviving spouse can make an application to receive reasonable financial support.
A former wife or former husband of the deceased (i.e. the decree absolute was granted before the deceased passed away) can also claim financial provision under the aforesaid Cap. 481, if he/she has not remarried and can show that he/she received financial maintenance from the deceased before their death.