Gully v Dix

For eligibility under the Inheritance (Provision for Family and Dependants) Act 1975, the expressions immediately before death and during the whole of the two-year period do not require exclusive attention to the factual position at the instant of death. The court must determine whether the settled maintenance and cohabitation arrangements still subsisted. A temporary physical separation does not necessarily end a shared household. The decisive question is whether the relationship had irretrievably ended, rather than whether the parties remained under one roof. A transitory interruption in a relationship still recognised by both parties as subsisting may preserve both the household and maintenance requirements.

The respondent had cohabited with the deceased for about 27 years. She left their home three months before his death because his drinking, aggression and her own illness made it unsafe for her to remain. She contended that the separation was temporary and that she intended to return.

HHJ Weeks QC, sitting in the Chancery Division at the Bristol District Registry, determined a preliminary issue in her claim for family provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. He declared that she met both the cohabitation and maintenance conditions. The deceased’s brother appealed. The central issue was whether the final three months’ separation prevented the respondent from qualifying as a member of the deceased’s household or as a person maintained by him immediately before death.

Disposition

1. The appeal was dismissed unanimously. Ward LJ gave the judgment, with which Mummery and Rix LJJ agreed. The judge’s declaration that the respondent qualified under the Inheritance (Provision for Family and Dependants) Act 1975 was upheld.

2. For section 1(1)(e), the requirement that an applicant was maintained immediately before death concerns the settled basis or arrangement for maintenance subsisting at that time. It does not concern a short-term de facto fluctuation. This approach, taken in In Re Beaumont, Deceased [1980] 1 Ch. 444 and followed in Jelly v Illife [1981] Fam. 128, was binding and correctly applied. The court may examine the preceding history to decide whether the arrangement remained settled. An arrangement which has ended cannot qualify, but an abnormal temporary interruption does not itself end it.

3. The same approach applies to section 1(1A), despite its different wording. “Same household” refers to a relationship, not simply occupation of the same house. The court must ask whether either party had reached a settled acceptance that the relationship was at an end. Physical separation does not prevent a shared household where the relationship remains recognised as subsisting. An irretrievable breakdown does prevent qualification; a transitory pause for reflection during difficult times does not.

4. The evidence entitled the judge to find that neither party treated the relationship as finished. The respondent intended to return if conditions became safe, and the deceased repeatedly sought her return. Their separation was therefore a temporary suspension of an enduring relationship. The deceased’s provision of the home also satisfied the unchallenged maintenance condition.

• Court of Appeal (Civil Division): Appeal dismissed, affirming the declaration of HHJ Weeks QC: [2004] EWCA Civ 139.

• Bristol District Registry, Chancery Division: HHJ Weeks QC determined a preliminary issue and declared that the claimant satisfied the statutory cohabitation and maintenance requirements.