Death after divorce

The fact that one of the spouses has died at a later date, although the judgment has not been notified, has no different effect.

According to the Court itself, the marriage had already been extinguished at the time of the death of the ex-husband.

As we have said, the First Chamber of the Supreme Court has established jurisprudence in relation to the effectiveness of the divorce judgement issued by mutual agreement in a case in which one of the spouses was not notified due to his or her death, concluding that the issuing of the first instance judgement, with both spouses agreeing on the petition for divorce, determines the dissolution of the relationship for this reason, with the death of one of the spouses after the date of said judgement not producing a different effect, even if it had not yet been notified.

At first instance, a judgment was handed down upholding the divorce action brought by the ex-husband, the ex-wife also agreeing with the claim. However, as the plaintiff died four days after the judgement was handed down without the judgement having been notified, the ex-wife appealed for the proceedings to be declared null and void and for the proceedings to be closed - at the time of notification of the judgement - which was rejected by the Court of Appeal.

If, as was the case, the marriage had already been extinguished by divorce at the time of the death of the ex-husband, this circumstance no longer affected the rupture of the bond - extinguished by divorce and not by death - although logically it did affect its consequences.

Therefore, the death of a spouse after the divorce judgment was handed down, even if both spouses agreed on this claim, even if it was not notified, does not prevent the marriage bond from being validly extinguished by divorce, since the divorce action brought and finally upheld produced its own effects from the time when the judgment was handed down at first instance, at the request of both spouses, declaring it to be so.

For this, it is no obstacle that art. 89 CC states that the effects of the divorce begin from the finality of the judgment, as the case law, interpreting article 774.5 LEC, has understood that the finality of the divorce pronouncement is produced at first instance when it has been requested by both spouses and, consequently, it cannot be appealed (given that the legislator has wanted to separate the finality of the main pronouncement in matrimonial proceedings from the challenge of the agreed measures, so that the latter does not prevent the former).

The judgment ends by stating literally: "The legislator has thus sought to give security to the situation of the breakdown of the marriage bond already declared - and necessarily consented to by both spouses, who requested it - so that from the initial judgment it produces its own effects, which - applied to the present case - means that the dissolution of the marriage took place through divorce and that such dissolution was effective before the death of the husband".