Chekov v Fryer & Anor

A consent order made under section 15 of the Inheritance (Provision for Family and Dependants) Act 1975 prevents a former spouse from applying in that capacity, but does not necessarily prevent a later claim based on cohabitation. The statutory bar in section 15(3) is read in context and implements the order-making power in section 15(1). It therefore addresses the former-spouse claim to which that power originally related, rather than every later category of applicant. A former spouse excluded from applying as such may fall within the cohabitation provision in section 1(1)(ba), provided the statutory cohabitation conditions are met. The claim should not be struck out where the assumed facts could establish that status.

The claimant, the former wife of the deceased, sought reasonable financial provision from his estate under the Inheritance (Provision for Family and Dependants) Act 1975. A 1982 consent order made on divorce provided that neither party could claim against the other’s estate under the Act unless they remarried. The parties did not remarry but were living under the same roof when the deceased died.

The defendants, the deceased’s sons and executors, applied under CPR r 3.4 to strike out the Part 8 claim. They argued that section 15(3) barred any application under section 2 and that section 1(1)(ba) excluded the claimant as a former spouse. The central issue was whether the claimant could nevertheless qualify as a cohabitant under the statutory scheme.

1. Application dismissed. The defendants’ other strike-out grounds were not pursued. The court had to assume that the claimant could prove the alleged cohabitation facts, and the CPR r 3.4 application concerned legal sufficiency rather than the strength of the evidence.
2. The 1982 consent order was an order of the court, not merely an agreement between the parties. It therefore engaged section 15(1) and the consequence in section 15(3) of the Inheritance (Provision for Family and Dependants) Act 1975. The later amendment of section 15 did not invalidate the order.
3. Section 15(3) is parasitic on section 15(1) and must be read in that context. The reference to an application under section 2 concerns the application which section 15(1) could prevent: an application by the former spouse in that capacity under section 1(1)(b). It does not, of itself, bar a claim under the cohabitation provision introduced in 1996.
4. The words in section 1(1)(ba) excluding a person included in section 1(1)(a) or (b) prevent overlapping claims where the earlier category remains available. They do not exclude a former spouse who has been barred by section 15(3) from applying as a former spouse. Such a person may qualify under section 1(1)(ba) if the two-year cohabitation conditions in section 1(1A) are proved.
5. The defendants’ construction would create an irrational distinction between different cohabiting former spouses and could leave a person with no available statutory category. The claimant’s claim therefore disclosed reasonable grounds and was not liable to be struck out.