How binding is a divorce order?

There was a great deal of media interest in a financial claim brought by a wife decades after a divorce and a recent case shows that the terms of a divorce relating to not claiming against the other party’s estate on death may not always be binding.

Where a divorce order states that the parties may not claim a share in the other's estate under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Act’), it might be assumed that on the death of one of the parties, the survivor will be prohibited from claiming for provision under the Act.

This is not, however, the decision reached by Deputy Master Matthews in the case of Chekov –v- Fryer.

Miss Chekov married Mr Fryer in the late seventies. The marriage failed and they divorced in 1981. Mr Fryer had two sons from a previous marriage.

In the usual way, the order dealing with financial provision included a prohibition on either party being entitled to claim against the other’s estate under the Act unless the parties re-married.

The Act allows certain categories of applicant to bring a claim if they consider that the administration of an estate, through the terms of a Will or the intestacy rules, does not make reasonable financial provision.

The categories are:

  • Spouse or civil partner
  • Former spouse or former civil partner who has not formed a subsequent marriage or civil partnership
  • Cohabitees
  • A child of the deceased
  • A person who is treated by the deceased as a child of any family in which the deceased stood in the role of a parent; and
  • A dependant

Miss Chekov and Mr Fryer did not re-marry and so the prohibition on bringing a claim for financial provision once Mr Fryer died would seem to unequivocally apply.

However, by the time Mr Fryer died, Miss Chekov and Mr Fryer were living in the same property and Miss Chekov claimed that they were cohabiting, which under the Act is defined as living in the same household 'as the husband or wife' of the deceased.

Mr Fryer's sons accepted that they lived at the same address but denied that they had been cohabiting.

The sons said it did not matter and attempted to strike out Miss Chekov's claim at the very beginning on the basis that the prohibition in the divorce order meant that Miss Chekov was not entitled to bring a claim in whatever capacity.

Miss Chekov argued that the original divorce order only prevented her bringing a claim as a former spouse; it did not stop her claiming as a cohabitee, not least as that right only came into existence under the Act in 1996.

The Deputy Master agreed that the original order did not prevent a claim as cohabitee.

The Master concluded that the statute envisages that a divorcing couple may choose to put themselves back within the ambit of the 1975 Act by re-marrying. He felt it was illogical to say that somebody who has been married, then divorced, but then cohabits cannot bring a claim as a cohabitee.

In the context of the number of marital breakdowns and the cost of housing, many couples who have legally separated may remain living under the same roof. On the death of one of the parties, the possibility of a claim may well lure the survivor to argue that the post-separation relationship had returned to one of husband and wife, cohabitation under the Act.

The sons are appealing.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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