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Cite as: [2015] EWHC 1642 (Ch)

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Neutral Citation Number: [2015] EWHC 1642 (Ch)
CLAIM NO: HC- 2014-001922



Tuesday, 23 June 2015

B e f o r e :








Crown Copyright ©

  1. This is an application by notice (which is undated, but which was sealed on 13 January 2015), whereby the Defendants seek an order under CPR r 3.4 that the Applicant's claim may be struck out on the basis:
  2. '(1) That the statement of case discloses no reasonable grounds for bringing the claim.

    (2) Further or alternatively that the claim is an abuse of the court's process.

    (3) Further or alternatively there has been a failure to comply with a Rule, Practice Direction or Court Order.

    And the costs of this Application and Action be paid by the Claimant.'

  3. As is made clear by the decision of Mostyn J in Dellal v Dellal [2015] EWHC 907, despite suggestions in CPR PD3A paragraphs 1.5 and 1.7, an application under r 3.4 is not one for summary judgment (which can be made under CPR r 24.2 in an appropriate case). It is concerned with matters of law, rather than with the strength or weakness of the facts. This application is supported by the witness statement of Clive Thomson, the Defendants' solicitor, and two exhibits. It arises in a claim, the Claim Form for which was issued under CPR Part 8 on 16 December 2014, for an order for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.
  4. At the hearing before me on 12 May 2015, Mark Dubbery of counsel appeared for the Applicants/Defendants, and Amy Berry of counsel appeared for the Respondent/Claimant. Although the application notice seeks to strike out the claim on three bases, not only because (1) it does not disclose reasonable grounds for bringing the claim, but also (2) as an abuse of process, and (3) on grounds of failure to comply with the rules, at the hearing the second and third heads were not pursued. I understood it to be accepted on behalf of the Defendants that the evidence by now filed on behalf of the Claimant was sufficient to prevent a strike-out for any failure to file evidence in support in a timely fashion or in compliance with the rules, and that it would not be right for the Court now to strike out the claim merely because of any delay in filing that evidence. However, an important point of law remains under (1), and was argued before me. It arises in this way.
  5. The Defendants are the two sons and the executors of the will dated 17 January 1980 of Antony Fred Fryer, who died on 14 December 2014. They are named as equal beneficiaries, to the exclusion of all other persons, under the will, which was admitted to probate on 22 April 2014. The Claimant was formerly married to the testator. The marriage broke down and there was a decree of divorce in the Southampton County Court on 5 January 1981. The order of the county court on financial provision was originally made on 14 July 1981, and varied by a further order of 6 May 1982. At paragraph 3 of the 1982 Order the following provision was included:
  6. '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.'

  7. It is common ground that the parties never remarried before the death of the testator. However, it is also common ground that by the time of the testator's death the parties were living under the same roof. The Claimant says that she and the testator were living together in the same household and as husband and wife for the purposes of section 1(1A) of the 1975 Act (which I set out below, and to which I will refer as 'the cohabitation rule'). The Defendants accept that the Claimant and the testator lived at the same address, but deny that there was cohabitation for the purposes of the Act (see paragraph 4 of Mr Thomson's witness statement). However, for the purposes of this application, I must proceed on the basis that the Claimant will be able at trial to prove her allegations of fact. On the other hand, and this is the basis of the application to strike out the claim, the Defendants say that, even so, as a matter of law her claim falls outside the Act, and must fail. It should therefore be struck out.
  8. So far as relevant, the 1975 Act (as amended) provides as follows:
  9. '1(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons

    (a) the spouse or civil partner of the deceased;

    (b) a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;

    (ba) any person (not being a person included in paragraph (a) or (b) above) to whom sub-section (1A) or (1B) below applies;

    (c) a child of the deceased; any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family;

    (d) any person (not being a person included in the foregoing paragraphs of this sub-section) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;

    that person may apply to the court for an order under section 2 of this 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 his will and that law, is not such as to make reasonable financial provision for the applicant.

    (1A) This sub-section applies to a person if the deceased died on or after 1 January 1996 and, during the whole of the period of two years ending immediately before the date when the deceased died, the person was living

    (a) in the same household as the deceased; and

    (b) as the husband or wife of the deceased.

    [ ]

    15(1) At any time when the court

    (a) has jurisdiction under Section 23A or 24 of the Matrimonial Causes Act 1973 to make a property adjustment order in relation to a marriage; or

    (b) would have such jurisdiction if either the jurisdiction had not already been exercised or an application for such an order were made with the leave of the court,

    the court, if it considers it just to do so, may, on the application of either party to the marriage, order that the other party to the marriage shall not on the death of the applicant be entitled to apply for an Order under Section 2 of this Act.

    In this sub-section 'the court' means the High Court or the Family Court.

    [ ]

    (3) If at any time when an order is made under sub-section (1) above with respect to any party to a marriage has effect the other party to the marriage dies, the court shall not entertain any application made by the surviving party to the marriage for an order under section 2 of this Act.'

  10. I deal here with one point to clear it out of the way at the outset. Paragraph 2 of the Details of Claim endorsed on the Claim Form seeks to argue that section 15 of the 1975 Act was enacted after the order of 1982 had been made. At the hearing, the Claimant rightly abandoned this argument. Section 15 was not enacted, but amended, after 1982, and in any event in a way which was not material to the claim. In the original version of section 15, it applied only if both parties agreed that the order should be made. The amendment therefore made the parties' consent irrelevant in future. But the order of 1982 was in fact made with the consent of both parties. So the court had power to make it at the time, and there is nothing in this point.
  11. On the question of law which arises, the Defendant's argument is simple. An order was undoubtedly made by the divorce court in 1982 under section 15(1). By section 15(3), on the death of one party to the marriage "the court shall not entertain any application for an order under section 2" made by the other party (emphasis supplied). So the Claimant simply cannot claim. In addition, the Claimant cannot rely on section 1(1)(ba) of the Act, permitting a cohabitant to apply, because that provision does not include a cohabitant who is "a person included in paragraph (a) or (b) above", and the Claimant, being the former spouse of the deceased, is within paragraph (b). And there is no other head of claim open to the Claimant. Hence this action must fail, and should be struck out.
  12. The Claimant's argument in response is more complex. First, she says that the consent order of 1982 could not exclude the right of the Claimant to make a claim as a cohabitant because that right did not then exist (it was not introduced until 1996). Therefore the order should not be construed so as to exclude such a right. Second, even if it were so construed, it would only be an agreement between the parties, and by analogy with prenuptial agreements should not be binding in all circumstances. In this connection the claimant referred to Hyman v Hyman [1929] AC 601 and Radmacher v Granatino [2010] UKSC 32. Thirdly, even if the order of 1982 were binding on the Claimant, section 1(1)(ba) should be construed purposively, so as to entitle the Claimant 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.
  13. It is common ground that there is no authority on the problem raised by these facts. In Francis, Inheritance Act Claims, there is a passage in paragraph [17] of chapter 4, arising out of a particular example given, which implies that a divorcee who subsequently cohabits with her divorced spouse can still have a claim as a cohabitant. However, that implication appears to be inconsistent with the statement in paragraph [18] of chapter 4, unsupported by authority, that, if an order under section 15(1) has been made,
  14. "the claimant cannot proceed as an eligible person under any head of section 1(1)"
    (emphasis in original).

    Even if one were able to resolve the apparent contradiction, without further explanation or references this does not assist me very much.

  15. As to the Claimant's first argument, I accept that, at the time of the divorce, the parties did not contemplate that Parliament might change the law in future to give the Claimant the ability to make a claim as cohabitant that she did not then have, and accordingly they did not consider that by their consent order they were excluding such a claim. But the function of the consent order in this context is merely to satisfy the condition for section 15(1) to operate. Once there is an order within section 15(1), section 15(3) takes effect. I consider the effect of that provision below.
  16. As to the Claimant's second argument, I reject the view that the consent order was just an agreement between the parties, and therefore should be treated analogously to a prenuptial agreement. A consent order embodies an agreement between the parties, but it is nonetheless an order of the court. The parties' mere agreement by itself does not have the effect of an order: compare Lord Atkin in Hyman at page 628. That is why court approval is needed. The court order then has the effect on 1975 Act claims set out in section 15(3).
  17. But here is the nub of the matter. It brings me to the first argument for the Defendants. When section 15(3) says that "the court shall not entertain any application for an order under section 2 of this Act made by [the Claimant]", what does that mean? The Defendants say it means just what it says. It excludes "any" application under section 2, including one as a cohabitant. But that ignores the context, and statutory interpretation always depends on context.
  18. Section 15(3) is parasitic on section 15(1). It has no rational function except to implement section 15(1). That provision, so far as relevant, reads
  19. "The court may, on the application of either party to the marriage, order that the other party to the marriage shall not on the death of the applicant be entitled to apply for an order under section 2 of this Act."

  20. So the application which as a result of section 15(3) is not to be made is one which would otherwise have been made by a person who was formerly a party to a marriage with the deceased. At the time that section 15 was originally enacted, and indeed at the time of the divorce in this case, the only claim that such a person could have made under the Act would have been one by a person within section 1(1)(b). The provisions allowing cohabitants to claim as such were not introduced until 1996. In my judgment, therefore, the reference in section 15(1) in the Act as originally passed to being "entitled to apply for an order under section 2 of this Act" was a reference to, and only to, entitlement to apply arising under section 1(1)(b). And there is nothing to indicate that that reference was changed or expanded by the amendment of section 1 in 1996 to include claims by cohabitants.
  21. Returning then to section 15(3), I conclude that the words "shall not entertain any application for an order under section 2 of this Act" are not free-standing, but refer back to section 15(1), and therefore must equally refer only to an application by a person within section 1(1)(b). Accordingly these words in section 15(3) were not intended to, and do not, cover the case of the applicant for an order under the cohabitation provisions in section 1(1)(ba), introduced in 1996.
  22. In my judgment, therefore, section 15(3) does not, at least not of itself, bar the ability of the Claimant to make a claim arising under section 1(1)(ba). The second argument of the Defendants however focuses on that latter provision. It says that "any person (not being a person included in paragraph (a) or (b) above) to whom [the cohabitation rule] applies" may apply for an order under section 2. As I have already said, the Defendants' argument is that the plain meaning of these words excludes the Claimant, because she is a former spouse of the deceased, and hence a person within paragraph (b). The Claimant responds that this provision must be construed purposively. The words in brackets were not intended to exclude a former spouse who could not make a claim as such from making a claim as a cohabitant, if she otherwise were able to do so.
  23. If the Defendants' argument is correct, it would mean that a person formerly married to A, but since divorced and cohabiting with B, would be able to make a claim against B's estate on his death, while such a person formerly married to B, and since divorced and cohabiting with B, would not be allowed to do so. It is not clear to me what policy could rationally be served by such a rule. It would allow some divorcees to claim, and not others. It would seem to draw the line in a place that serves no useful purpose. So, if there is a way to read the statutory provision which draws a line in a more sensible place than the Defendants suggest, the court should surely do so, rather than attribute to Parliament a useless intention.
  24. The termination of marriage, whether by divorce or death, gives rise to an opportunity for the applicant to apply for reasonable financial provision from the other spouse or the estate of the deceased. Hence a more coherent policy might be to draw a line under the marriage, either on divorce or death. If it is a case of divorce, then the subsequent death should make no difference. It should not give rise to a second bite of the cherry.
  25. Such a policy would however be disrupted by the occurrence of events which give rise to a second bite of the cherry under the existing legislative text. For example, A and B marry, they divorce, and then they remarry each other. Even if the divorce (followed by a section 15(1) order) has put an end to the possibility of a 1975 Act claim as a former spouse, the remarriage to the same spouse gives rise to a second possible claim. When A dies, B may make a claim under section 1(1)(a), despite the fact that she may have received financial provision on the divorce. But that is the result of the fact that A and B deliberately put themselves back within the provisions of the Act, by remarrying.
  26. Since 1996 the same is potentially true of cohabiting. A and B marry, then divorce, and B obtains financial relief. Then subsequently they cohabit without marrying. A dies. If they are now within the scope of the Act, it is their deliberate actions that have put them there. Once Parliament decided that cohabitants should be able to claim, I see no good policy reason for treating the two cases (remarriage to the same person and further cohabiting with the former spouse) differently.
  27. The Claimant says that the words "any person (not being a person included in paragraph (a) or (b) )" are "intended to ensure that an applicant should make the application under the higher/highest category if they are able" (paragraph 12 of the Claimant's skeleton argument). This is supported by the appearance of similar words in brackets in section 1(1)(e): "(not being a person included in the foregoing paragraphs of this subsection)". Section 1(1)(e) confers the ability to make a claim on persons dependent on the deceased before his or her death. But such persons could have also been (in the original version of the statute) spouses, former spouses or children of the deceased. So the draughtsman appears to have used these words to exclude any claim as a dependent, if there was a claim under an earlier paragraph. Similarly, the draughtsman in 1996, introducing for the first time the ability of cohabitants to apply, used similar words to prevent double claims.
  28. So far, so good. But there is a problem. The former spouse sometimes (as in the present case) has no claim as such, because an order has been made on divorce under section 15(1). Does this mean that (as the Defendants argue) that the Claimant has no claim under section 1(1)(ba) (because a person within section 1(1)(b)) and no claim under section 1(1)(b) (because of the order under section 15(1))?
  29. In my judgment, the key to the resolution of the problem is this. Section 1(1) confers upon certain persons, set out in paragraphs (a) to (e), the ability to apply to the court for an order under section 2 for reasonable financial provision. So when, in section 1(1)(ba) and section 1(1)(e), the Act uses the phrase "not being a person included in [earlier provisions]", it is referring to a person who is able to apply to the court for an order under section 2. However, where a former spouse has been excluded by virtue of section 15(3) from making such an application, because of an order under section 15(1), that person is not a person able to apply to the court as a former spouse under section 1(1)(b). Accordingly, that person (if cohabiting with the former spouse during the relevant period before the latter's death) is capable of being a person falling within section 1(1)(ba).
  30. The Defendants say that, if the words in brackets do not exclude the Claimant in this case from making a claim under s 1(1)(ba), they will never exclude anyone. I do not agree. A former spouse not subject to a section 15(1) order would be caught by these words, meaning that she could not make a claim as cohabitant under s 1(1)(ba), because she could still make one as a former spouse under s 1(1)(b).
  31. In my judgment, therefore, on the assumed facts in this case, the Claimant does fall within section 1(1)(ba), the claim cannot be struck out as disclosing no reasonable grounds for bringing it, and the Defendants' application fails, and is dismissed.

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