We have previously written and blogged about the amendments to Sections 17 and Section 43(1) of the Succession Law Reform Act (SLRA), which came into effect on January 1, 2022, and their impact on the rights of separated spouses when one partner passes away. These changes were introduced to clarify the treatment of separated spouses in matters of inheritance, but there was some uncertainty regarding the timing of the applicability of these amendments and how the courts would interpret the transition provisions.

As of January 1, 2025, the waiting period for the full applicability of these provisions has passed and they have become fully effective. In this blog, we will take a closer look at these amendments and explore their implications for separated spouses.

Section 17 of the SLRA has long outlined the effect of divorce on a testator’s will. Prior to the amendment, the law stipulated that any gifts made to a spouse, or any appointment of a spouse as an Estate Trustee, would be revoked upon divorce. Essentially, after a divorce, a spouse would be treated as though they had predeceased the testator.

The recent amendments to Section 17 extend these provisions to separated spouses, even if they have not yet obtained a formal divorce. This change ensures that gifts to, or appointments of, a spouse are also revoked when a separation occurs, not just in cases of divorce.

Alongside the updates to Section 17, another significant change was introduced with the enactment of Section 43.1 on January 1, 2022. This provision revokes the intestate inheritance rights of separated spouses. In simpler terms, if a separated spouse dies without a will (intestate), their separated spouse will no longer automatically inherit from their estate.

Both Sections 17 and 43.1 introduce the concept of a “separated spouse.” A spouse is considered separated if they meet any of the following criteria before the testator’s death:

1. They have lived apart for at least three years due to the breakdown of their marriage.
2. They have entered into a separation agreement.
3. They are subject to a court order or arbitration award.

The transition provisions for both amended Section 17 and newly introduced Section 43.1 specify that:

1. The separation event must have occurred after January 1, 2022.
2. If the separation is due to living apart for three years because of the breakdown of the marriage, the spouses must have started living separately after January 1, 2022.

This means that in the absence of a separation agreement or a court order/arbitration award, the mere fact that the spouses lived separate and apart for a period of three years will lead to them being considered separated spouses, provided the other conditions are met. However, for the purpose of these new amendments, the three-year period must have commenced after January 1, 2022. Therefore, the condition of having lived apart for three years could not be satisfied until January 1, 2025. This long waiting period resulted in uncertainty among legal professionals as to how the transition provisions would be interpreted.

In early 2024, the court clarified the situation in the case of McDowell v. McDowell. In this case, the court confirmed that the amendments would not apply to couples who separated in 2020. While the case was not related to the rights of surviving separated spouses, it provided clarity on the interpretation of the transition provisions.

With the arrival of January 1, 2025, there is no longer confusion about the timeframe set by the transition provisions of these two sections. However, there are still some issues that require judicial determination to fully clarify the applicability of these provisions.

Under both Section 17 of the SLRA and Section 43.1, a spouse is considered separated if they have lived separate and apart for three years due to the breakdown of their marriage. However, the terms ” Living separate and Apart ” and “breakdown of marriage” are not explicitly defined in the SLRA, and there is no case law directly addressing these issues in the context of estate proceedings.

Thankfully, there is guidance from the Divorce Act and the Family Law Act on this matter. Under Section 8(1) of the Divorce Act, a court may grant a divorce if there has been a breakdown of the marriage. This “breakdown of marriage” can occur in one of two ways:

1. Adultery or mental/physical cruelty, which makes continued cohabitation intolerable.
2. Living separate and apart for at least one year before initiating the divorce proceedings.

Section 8(2) of the Divorce Act provides further clarity on when spouses are considered to be living separate and apart. It states that spouses are considered to be living separate and apar during any period in which they were physically apart and one or both intended to live separately. This separation is not interrupted if the spouses briefly resume cohabitation for less than 90 days for the purpose of reconciliation. Similarly, the separation is not terminated if one spouse becomes incapable of maintaining the intention to live apart or is forced into cohabitation against their will.

In Oswell v. Oswell, the court also outlined several factors to assess whether spouses have been living separate and apart in a family law proceeding. These include:

• Physical separation: It’s important that spouses are physically separated, though staying in the same house due to economic necessity doesn’t negate the fact that they are living apart.
• Withdrawal from marital obligations: There must be a clear withdrawal from matrimonial duties with the intent to destroy or repudiate the marital relationship.
• Absence of sexual relations: While not conclusive, the absence of sexual relations may be a factor.
• Communication and shared activities: Courts will consider the extent of communication, joint activities, and the overall day-to-day relationship.
• Household tasks: The performance (or lack thereof) of household tasks is secondary to the more relevant marital issues.
• True intent: The court will focus on the true intent of a spouse, often relying on factors such as income tax returns to gauge this intent.

Looking forward, we expect future cases to offer additional clarity on what constitutes “living separate and apart” and a “breakdown of the marriage” in estate proceedings. As the interpretation of these concepts evolves, it will continue to shape how marital separation is addressed in legal matters related to inheritance and estate planning.

Thanks for reading.

Mandana