Chekov v Fryer & anr [2021] WTLR 441

WTLR Issue: Summer 2021 #183






The claimant was the former spouse of the deceased. They were divorced in the Southampton County Court and by an order dated 6 May 1982 (the order) it was provided that neither party was entitled to make a claim against the estate of the other under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act) unless the parties remarried. Although the parties did not remarry, by the time of the deceased’s death they were living under the same roof. The defendants, who were the two sons and executors of the deceased, denied that the claimant and the deceased were living together in the same household as husband and wife for the purposes of s1(1A) of the 1975 Act. The defendants sought an order to strike out the claim on the basis that as a matter of law it fell outside the 1975 Act.

Held (dismissing the application):

There was no doubt that the claimant could not rely on s1(1)(b) of the 1975 Act as a former spouse of the deceased because by s15(3) it was provided that the court ‘shall not entertain any application for an order under Section 2‘. However, at the time the order was made, the parties did not contemplate that Parliament might change the law to give the claimant the ability to make a claim as a cohabitant. At the time s15 of the 1975 Act was originally enacted, and indeed at the time of the divorce, the only claim the parties could have made would have been one by a former spouse within s1(1)(b). Accordingly, the reference in s15(1) to be ‘entitled to apply for an order under Section 2‘ was a reference to, and only to, an entitlement to apply as a former spouse and, it followed, those words were not intended to, and did not, cover the case of an applicant for an order under the cohabitation provisions referred to in s1(1)(ba) which were not introduced until 1996. Although that subsection prohibited a spouse or former spouse from applying as a cohabitant, a purposive interpretation of the legislation would not debar the claim because the words ‘not being a person included in [earlier provisions]’ referred to a person who is able to apply to the court for an order under s2 and in this case, where the claimant has been excluded from making an application by virtue of s15(3) of the 1975 Act, that person was not a person able to apply to the court as a former spouse under s1(1)(b). Thus, 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 s1(1)(ba) of the 1975 Act.

JUDGMENT DEPUTY MASTER MATTHEWS: [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 r3.4 that the Applicant’s claim may be struck out on the basis: ‘(1) That the statement of case discloses no reasonable grounds for bringing the …
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Counsel Details

Mark Dubbery (Pump Court Chambers, 3 Pump Court, Temple, London EC4Y 7AJ, tel 020 7353 0711, email for the applicants/defendants.

Amy Berry (Pump Court Chambers, 3 Pump Court, Temple, London EC4Y 7AJ, tel 020 7353 0711, email for the respondent/claimant.

Cases Referenced

Legislation Referenced

  • CPR r3.4, PD3A
  • Inheritance (Provision for Family and Dependants) Act 1975, ss1, 1A, 2 and 15