Daphne Parish v Sharman

For a surviving spouse, reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 is not confined to maintenance. The court must assess what is reasonable in all the circumstances, including the parties’ financial arrangements after separation and what the applicant might reasonably have expected on a hypothetical divorce. Relevant conduct may also be considered. An effective financial clean break and substantial existing resources may justify refusing further provision. On appeal, findings about witness reliability and the weight given to evidence are respected where the trial judge directed herself correctly and reached conclusions open on the evidence. A non-critical subsidiary finding does not vitiate the result where independent findings support the decision.

The appellant remained legally married to the deceased because a decree nisi had never been made absolute. The parties had separated many years earlier and had made no application for ancillary financial relief. The deceased left his estate to the respondent, with whom he had cohabited.

The appellant applied under the Inheritance (Provision for Family and Dependants) Act 1975 for financial provision, principally a lump sum. The County Court dismissed the application, finding that the parties had effectively gone their separate ways financially and that the appellant already had substantial resources through her interest in Cadnams Farm.

On appeal, the appellant challenged findings about the parties’ financial arrangements, her alleged conduct concerning the divorce, the assessment of her evidence, and the weight given to various financial and personal factors. The central issue was whether the trial judge had made an error of law or reached findings and conclusions which could properly be disturbed on appeal.

1. Disposition. The extension of time was granted. The appeal was dismissed. Costs were ordered to be borne by the Legal Aid Commission subject to application, with the appellant’s contribution assessed as nil. The appellant was also required to take the necessary steps to remove the caution registered against 35 Thorpe Gardens.
2. Statutory approach. Lord Justice Jonathan Parker held that the trial judge had correctly directed herself under the Inheritance (Provision for Family and Dependants) Act 1975. Although the appellant was treated as the deceased’s wife, the relevant standard under section 1(2)(a) was provision reasonable in all the circumstances, whether or not required for maintenance. The claim would also have failed under the maintenance-based standard in section 1(2)(b).
3. The court was entitled to consider the parties’ financial arrangements after separation, including the absence of ancillary-relief proceedings and their effective financial separation. The matters specified for spouse applications under section 3(2), including the duration of the marriage, family contributions and the provision reasonably expected on a hypothetical divorce, were properly considered. Relevant conduct could be taken into account under section 3(1)(g). Lord Justice Thorpe described the task as akin to determining a financial claim following divorce and regarded the claim as hopeless once the effective financial separation had been established.
4. Appellate review. The trial judge was entitled to assess the appellant as an unreliable witness and to attach the weight she considered appropriate to the evidence concerning Cadnams Farm, the appellant’s health, business contributions, liabilities, the lorry rent and the parties’ financial circumstances. The Court of Appeal would not reweigh those matters where the findings were open on the evidence.
5. The finding that the appellant may have allowed the deceased to believe that the divorce was finalised was not central to the decision. Even if further evidence displaced that finding, the independent finding of a financial clean break and the other adverse credibility findings would remain sufficient. Fresh evidence and relitigation of that issue were therefore unnecessary.

Lord Justice Thorpe agreed with Lord Justice Parker. The decision below was upheld.

• Winchester County Court: Her Honour Judge Bonvin dismissed the appellant’s application on 17 January 2000.
• Court of Appeal (Civil Division): permission to appeal was granted on the papers. The extension of time was allowed and the appeal was dismissed: [2000] EWCA Civ 3038.