Who counts as a 'spouse'? Void marriages and the 1975 Act

When a person dies without a will, their estate is distributed according to the intestacy rules of England and Wales. For many families, this is the starting point after a death. Under those rules, a surviving spouse or civil partner is given priority and will usually inherit at least half of the estate, but potentially even more, depending on whether there are children and the value of the estate.

However, intestacy relies on the strict premise that the surviving partner was legally married to, or in a civil partnership with, the deceased at the time of death. Where that assumption is undermined because a marriage is void, the consequences can be severe. In those cases, the person who considered themselves a spouse will receive nothing automatically under intestacy, no matter the length of the relationship.

These situations are not always the result of wrongdoing or deception. They often arise due to misunderstandings or administrative complexity. For example, uncertainty over whether a previous divorce had been finalised, confusion about the validity of an overseas marriage or divorce, or differences between legal systems regarding marriage formalities. While legal advice should ideally be taken before marriage in such circumstances, this is not always possible. Where issues only come to light after death, the law does provide a potential remedy.

The 1975 Act

That remedy is found in the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). Ultimately, the best protection for a surviving spouse, partner or dependant is always a properly drafted will. But where there is no will, or where a will fails to make adequate provision, the 1975 Act can be a route to financial relief.

The 1975 Act allows certain categories of people to apply to the court for reasonable financial provision from a deceased person’s estate. This is not an automatic entitlement. It is a discretionary remedy, requiring the court to consider factors such as the applicant’s needs, the size and nature of the estate, and the competing claims of others.

Spouses occupy a privileged position under the Act. A surviving spouse may seek provision assessed by what is reasonable in all the circumstances, whether or not it is required for maintenance. This standard reflects Parliament’s intention to protect those whose lives were financially and emotionally connected with the deceased.

A wider meaning of 'spouse'

What is less well-known is that the 1975 Act deliberately adopts a broader concept of 'spouse' than intestacy law. Section 25(4) provides that, for the purposes of the Act, references to a 'spouse', 'wife' or 'husband' include a person who entered into a void marriage in good faith with the deceased.

A marriage may be void even though it looked, felt and functioned like a valid marriage throughout the parties’ lives. It would be unjust if a person who genuinely and in good faith believed themselves to be a spouse was deprived of the legal protections afforded by the Act, which seeks to protect those who have been left unfairly destitute positions after their partner's death. The Act therefore focuses not only on legal formality but also on the reality of the relationship and the claimant’s honest belief.

There are limits to this protection. It will not apply where the void marriage was dissolved or annulled during the deceased’s lifetime, and that dissolution or annulment is recognised in England and Wales. Nor will it apply if the claimant entered into a subsequent marriage or civil partnership during the deceased’s lifetime.

What does 'good faith' mean in a void marriage?

'Good faith' is a critical requirement. It means an honest belief that the marriage ceremony created a valid marriage. The court does not expect claimants to have expert knowledge of the law; what matters is their genuine understanding at the time.

The decision in Dinsdale v Fowell illustrates this clearly. The deceased’s second marriage was void because he was, unbeknown to his second wife, still legally married to his first wife. The second wife believed in good faith that she was lawfully married. The court held that she fell within the extended definition of 'spouse' under the 1975 Act and could bring a claim, despite the marriage’s invalidity.

What is less clear, on the face of the Act, is whether knowledge of a previous marriage would automatically disentitle a person from claiming to be a 'good faith' spouse. It is of course entirely possible that an inadequate or incorrect understanding of the law may mean that a person who is aware of a previous marriage nonetheless has a good faith belief in the validity of their own marriage to the deceased. There is also uncertainty as to whether someone with an incorrect belief that a void marriage had been subsequently formalised would fall within this provision.

Void marriages, intestacy and public policy

The position under intestacy law is different. Under the intestacy rules, a spouse is defined narrowly and good faith is irrelevant. A void marriage is simply no marriage at all. Unmarried partners, cohabitees and partners to a void marriage have no automatic entitlement, even where the relationship was long‑standing and dependent.

There is an argument that the intestacy rules should align more closely with the more humane approach of the 1975 Act, particularly where good faith can be established. At the same time, there is a public policy reason why the intestacy rules should be simple and provide certainty, so that estates (most of which will be uncontroversial) can be administered without unnecessary delay. The Act exists to provide a fallback position to protect those who have been caught out by those rules.

For families facing these issues, the key message is that discovering that a marriage was void does not necessarily leave them without remedies. The 1975 Act exists to address precisely these cases. That said, litigation is uncertain, stressful and costly. The most reliable way to ensure that those closest to you are protected remains obtaining proper legal advice and having a carefully drafted will.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2026