1975 Act: ‘Til death do us part ?

In Chekov v Fryer and another [2015] EWHC 1642 (Ch), the Defendants applied to strike out an application under the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act"), on the basis that the Claimant had no reasonable grounds for bringing the claim.

The case considers the right of a former spouse of the deceased to bring a claim under the 1975 Act and raises issues for practitioners both when advising on 1975 Act claims and when considering the appropriate drafting of financial orders in divorce proceedings.

Background

The dispute concerned the will of Antony Fred Fryer, who died on 14 December 2013. The Defendants were the two sons of Mr Fryer, and were named as executors and equal beneficiaries under Mr Fryer’s will dated 17 January 1980. The will was admitted to probate on 22 April 2014.

Ms Chekov was formerly married to Mr Fryer. The decree of divorce was made on 5 January 1981, and the order of Southampton County Court on financial provision was originally made on 14 July 1981 and varied by a further order of 6 May 1982. The 1982 order included the following provision at paragraph 3:

“Neither party shall be entitled to claim against the estate of the other under the Inheritance (Provision for Family and Dependants) Act 1975 unless the parties shall remarry.”

Ms Chekov and Mr Fryer never remarried. However, Ms Chekov contended that at the time of Mr Fryer’s death they were living together in the same household and as husband and wife for the purposes of s 1(1A) of the 1975 Act, i.e. as cohabitants.

The Defendants accepted that Ms Chekov and Mr Fryer were living at the same address, but denied that there was cohabitation for the purposes of the 1975 Act. In any event, they argued that (regardless of whether Ms Chekov was in fact cohabiting with Mr Fryer) Ms Chekov was precluded from pursuing her claim as a result of the 1982 order, and the claim should therefore be struck out.

Persons entitled to claim under the 1975 Act

Under section 1(1) of the 1975 Act the following categories of person are entitled to bring a claim:

• (a)        the spouse or civil partner of the deceased;
• (b)        a former spouse or civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
• (ba)      a person (not being a person included in paragraph (a) or (b) above) to whom sub-section (1A) or (1B) below applies (i.e. cohabitants);
• (c)        a child of the deceased;
• (d)        a person who is treated by the deceased (in relation to a marriage or civil partnership) as a child of any family in which the deceased stood in the role of a parent; and
• (e)        a dependent of the deceased.

Section 1(1A) of the 1975 Act permits a claim by a cohabitant of the deceased (if the deceased died on or after 1 January 1996), provided that the following conditions are met:

• That the cohabitation continued for the whole of the two years immediately before the deceased’s death;
• That the claimant lived in the same household as the deceased; and
• That the claimant was living with the deceased as his/her husband or wife or civil partner.

A person falling into one of the above categories is entitled to apply to the court for an order under s 2 of the 1975 Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy (or the combination of both) does not make reasonable financial provision for them.

Restrictions imposed in divorce proceedings

Section 15(1) of the 1975 Act enables the court, on the making of a divorce, nullity of marriage or judicial separation order, to order that a party to a marriage shall not be able to apply for an order under section 2 of the Act. In this case, the 1982 order of Southampton County Court was made under s 15(1).

Such an order takes effect under section 15(3), which operates so that:

“Where an order made under subsection (1) above on the grant of a decree of divorce or nullity of marriage has come into force with respect to a party to a marriage, then, on the death of the other party to that marriage, the court shall not entertain any application for an order under section 2 of this Act made by the first-mentioned party.”

The application

The Defendants sought an order under CPR r 3.4 that Ms Chekov’s claim should be struck out on the basis that her statement of case disclosed no reasonable grounds for bringing the claim.

They argued that the 1982 consent order prevented Ms Chekov from bringing any claim under the 1975 Act, as s 15(3) states “the court shall not entertain any application for an order under s 2″ (emphasis supplied by the Defendants).

The Defendants further contended that Ms Chekov could not claim as a cohabitant under s 1(1)(ba) of the 1975 Act because that provision excludes a person who is “included in para (a) or (b) above”. As the former spouse of the deceased, Ms Chekov was within para (b).

The Claimant’s response

Ms Chekov argued in response to the Defendants’ application:

1. The 1982 consent order could not exclude her right to bring a claim as a cohabitant because that right did not then exist. The amendments to allow such a claim were introduced by the Law Reform (Succession) Act 1995, which came into force on 1 January 1996. The 1982 order should not be construed to exclude this right.
2. If the order was so construed, it would only be an agreement between the parties, and by analogy with prenuptial agreements should not be binding but only of persuasive influence.
3. Finally, even if the 1982 order was binding upon her, s 1(1)(ba) should be construed purposively, to entitle her to bring a claim as a cohabitant. The word “person” should be construed to refer to the capacity of a person rather than to the identity of that person.

Judgment

In respect of Ms Chekov’s first argument, Master Matthews accepted that at time of the divorce, Ms Chekov and Mr Fryer did not contemplate that the law might be changed in the future to allow cohabitants the right to bring a claim. Accordingly, they did not consider that by their consent order they were excluding such a claim. But the application of s 15(3) must still be considered.

Secondly, Master Matthews rejected the view that the 1982 order should be treated analogously to a prenuptial agreement. Though a consent order represents an agreement between the parties, it is still an order of the court. The court order then takes effect as set out in s 15(3).

Turning to the application of s 15(3), Master Matthews decided that at the time s 15 was originally enacted, and indeed at the time of Ms Chekov and Mr Fryer’s divorce, the reference in s 15(1) to a person “entitled to apply for an order under s 2 of this Act” only referred to entitlement arising under s 1(1)(b), i.e. a former spouse who had not remarried. He concluded that the provisions of s 15 were not intended to, and did not, prohibit Ms Chekov bringing a claim under the cohabitation provisions in s 1(1)(ba), introduced in 1996.

Master Matthews rejected the Defendants’ argument that Ms Chekov was unable to claim under s 1(1)(ba).  He saw no good policy reason for treating remarriage to the same person and cohabitation with a former spouse differently. Where s 1(1)(ba) uses the phrase “not being a person included in paragraph (a) or (b) above”, it is referring to a person who is able to apply to the court under s 2. Therefore where an order has been made under s 15(1) so that a person is not able to apply to the court under s 1(1)(b) as a former spouse, that person is still capable of falling within s 1(1)(ba) as a cohabitant.

Accordingly, Master Matthews concluded that Ms Chekov was able to bring a claim as a cohabitant under s 1(1)(ba), and the Defendants’ application to strike out the claim was dismissed.

Practice points

Practitioners ought to consider the possibility that a former spouse or civil partner may be able to bring a claim under s 1(1)(ba) of the 1975 Act if the parties legally separate and subsequently cohabit.

Despite the particular outcome of this case, it does offer a reminder that there may be bars to 1975 Act claims by former spouses and former civil partners. Practitioners should, therefore, always check divorce and similar orders before advising on the merits of the claim. Given the wide use of standard financial remedy orders (see below), it is more likely than not that 1975 Act claims will be addressed in the order.

Care should be taken in the drafting of financial orders on divorce to ensure that the possibility for future claims is inhibited as far as possible. Family practitioners are assisted greatly by the publication of a series of standard form of financial orders issued by Mostyn J. The precedent final order on financial remedies includes the following clauses:

Declaration of intention to limit claims under the Inheritance (Provision for Family and Dependants) Act 1975

The [applicant] / [respondent] acknowledges that, if the [respondent] / [applicant] predeceases [him] /[her], any claim that [he] / [she] may make against the [respondent’s] / [applicant’s] estate under the Inheritance (Provision for Family and Dependants) Act 1975 shall be limited to seeking a sum to compensate them for the loss of the periodical payments the [respondent] / [applicant] was ordered to pay them at paragraph [para number] below for themselves [and the children of the family].

Clean break: capital [and income] – Applicant

Except as provided for in this order, the applicant’s claims for [[secured] periodical payments orders,] lump sum orders, property adjustment orders, pension sharing orders and pension attachment orders shall be dismissed [and [he] / [she] shall not be entitled to make any further application in relation to the marriage for an order under the Matrimonial Causes Act 1973 section 23(1)(a) or (b) and [he] / [she] shall not be entitled on the respondent’s death to apply for an order under the Inheritance (Provision for Family and Dependants) Act 1975, section 2].

If there is a likelihood that the parties may be compelled to cohabit following the divorce, wording could be included in the order making it completely clear that it is the parties’ intention that neither should be permitted to bring a 1975 Act claim on the basis of cohabitation; this would of course be a very “belt and braces” approach.

The novel argument raised in the case comparing the consent order to a pre-nuptial agreement offers an opportunity to remind practitioners of the status of pre- and post-nuptial agreements in this jurisdiction. Since this case was reported in 2015, such agreements have become commonplace and there is now a broad base of case law dealing with the impact of them. It remains the position, however, that the agreements (however properly and carefully crafted) are just one of the factors that the Court will consider when looking at what the financial outcome of a divorce or dissolution of a civil partnership should be; they are not legally binding and can be overturned by the Court.

The case highlights the many permutations relationships and living arrangements can take. A financial order on divorce represents an opportunity to provide clarity to a couple that may have relevance for the rest of their lives. It is therefore of fundamental importance that time and care is taken (even at the end of a long day of litigation) to seek to ensure that any potential claims are limited as far as possible and that there is no ambiguity as to the couple’s future rights and responsibilities towards each other in life and on death.

This article was first published in the Trust and Estates Law & Tax Journal on 21st April 2021.