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The effect of cohabitation on a clean break order

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A court order dismissing your spouse’s claims against your estate upon death may not prevent a claim if you continue to live together

 

If a person lives with their ex-spouse after they divorce, can he/she make a claim against their ex’s estate upon death as a cohabitant under the Independents (Provision for Dependants) Act 1975 , even if they have already dismissed such claims as their spouse ?  Recent case Chekov v Fryer and another [2015] EWHC 1642 (Ch), [2015] All ER (D) 303 (Jun)  suggests YES.

The case concerned the application of an ex-wife, Ms Chekov, to claim against the estate of the deceased, her ex-husband, Mr Fryer, with whom she was living in the relevant period prior to this death.  The defendants were Mr Fryer’s sons to whom Mr      had left his entire estate, and the executors of Mr Fryer’s will.

Upon divorce the parties entered into a consent order which included the dismissal of their respective claims against the estate of the other upon death - unless the parties were to remarry.  They did not remarry but resumed living together and Ms Chekov  brought a claim for reasonable financial provision as Mr Fryer’s cohabitant following his death.  

Under the I (PFD) Act 1975, those entitled to claim include:

  • a former spouse/civil partner who has not formed a subsequent marriage/civil partnership; and
  • cohabitants.

The sons sought to defend this on the basis that she had dismissed her claims within the consent order.

Ms Chekov argued that the order only prevented her from applying as his ex-spouse, not as a cohabitant.  Ms Chekov further raised the fact that the ability to make a claim as a cohabitant under the 1975 Act was not brought into force until 1996, some years after she and Mr Fryer entered into their consent order.

Deputy Master Matthews accepted Ms Chekov’s position and dismissed the defendant’s application to strike out her claim. His justification was that if he found in favour of the defendants, then Ms C would not be entitled to claim as either ex-spouse and cohabitant against Mr Fryer’s estate.  If, however, she were to move in with another (B), but did not marry, then she would be able to claim against B’s estate (as cohabitant) and, had she remarried Mr Fryer, then she would have been able to claim as his spouse.  This to Deputy Master Matthews was an irrational situation.

One argument raised by the defendants is that Ms Chekov was not able to claim as a cohabitant as this status only applies of she were not a former spouse, i.e. that a person would only be able to make a claim under one status.  As she failed under the title of former spouse due to the consent order, her claim failed altogether.  Ms Chekov argued that the judge should adopt a purposive approach to interpreting the act rather than such a literal one, that the purpose of the wording was to prevent a party from making a double claim under both titles rather than no claim at all.  Deputy Master Matthews agreed, he considered that as the act envisages the possibility of a couple who are divorced putting themselves back into the remit of the act by remarrying, why then should the person who cohabits (as opposed to remarries) not be entitled to bring claim under the status of cohabitant.

Of course Ms Chekov’s claim has yet to be dealt with and she must still satisfy the court that she has not been reasonably provided for.  The definition of reasonable provision for a cohabitant is lower than that of a spouse and further any resources that she took from the divorce will betaken into account by the court.

What can we learn?

The decision served to highlight the court’s recognition of the variety of ways that people live their lives and it is becoming more and more common for economic reasons for people to continue to live with each other post divorce.

When advising on the terms of a financial settlement/consent order, clients should be advised of the possibility that an ex spouse may be able to pursue a claim for financial provision from their estate in the event of death if they continue to live, or resume living together, after they have legally separated. 

This could be overcome by proper provision in the order, or, could be dealt with by the parties entering into a living together agreement in the event that cohabitation later resumes.

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