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Our client was in a violent unmarried relationship with Martin for a total of 5 years punctuated by numerous short periods of separation the last separation being some three weeks ago. It is assumed that when they were together they lived as husband and wife. It is further assumed that there were no children. Martin died 3 days ago. It is assumed that he either died intestate or that, if he left a Will, it failed to make reasonable provision for Olivia. Having enjoyed a good standard of living during the relationship \u201cas a consequence\u201d of Martin\u2019s financial resources, our client wishes to be advised as to her entitlement to financial provision out of his estate and, in particular, whether she may remain in the former quasi-matrimonial home which was owned by Martin.<\/p>\n
The Inheritance (Provision for Family and Dependants) Act 1975, as amended by the Law Reform (Succession) Act 1995 provides that (provided the deceased died on or after 1st<\/sup> January 1996) any person who [not being a spouse or former spouse of the deceased] during the whole of the period ending immediately before the date when the deceased died was living in the same household as the deceased and as the husband or wife of the deceased may apply to the court for an order under s.2 of the 1975 Act on the ground that the disposition of the deceased\u2019s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.<\/p>\n Our client will have to show that she was living in the same household as the deceased as his wife immediately before the date of his death. In this respect, it may be argued that her departure a little more than a fortnight before may disqualify her. However, this was a reasonably long relationship characterised by many such departures. It was held in Re Watson<\/em> [1999] 1 FLR 878 that a court should determine whether parties were thus living together by reference to the test of \u201ca reasonable person with normal perceptions\u201d and having regard to the multifarious nature of marital relationships. Unless, therefore, there is some factor which makes the recent exit distinctively final, it is probable that the court will not hold that the necessary cohabitation had ended having regard to the history of the behaviour of the parties towards each other.<\/p>\n Where the court is satisfied of our client\u2019s entitlement to apply and the failure of reasonable provision as described above, it is empowered by s.2(1) of the Act to make a variety of orders. Those which are probably applicable to Olivia are contained in ss.(a)-(c):<\/p>\n In exercising these powers, s.3(1) provides that the court shall have regard to the factors set out in s.3(5). The relevant criteria in relation to our client will be:<\/p>\n Because our client was a cohabitee rather than a spouse or former spouse (who has not remarried or had her entitlement terminated by court order) she will be unable to pray in aid the provisions of s.15A of the Act (introduced by the Matrimonial and Family Proceedings Act 1984) which requires in such cases that the court also have regard to the expectation of such a party had the marriage continued. Therefore, she will be restricted to the above criteria – the previously high standard of living will not be a factor.<\/p>\n Therefore, as presently instructed, it is possible to advise our client that (subject to the cohabitation issue described above being resolved in her favour) she is entitled to make an application. The precise outcome of such an application cannot at present be determined because it is not known whether and to what extent the court will have to balance her requirements against the competing claims of any beneficiary of Martin\u2019s will or intestacy. Further, instructions have not yet been taken in order to determine whether Olivia has any independent income or resources of her own. (If, for example, during the periods of separation she was able to return to her own property, it would be difficult for her to sustain a claim that there should be a sufficient transfer of the interest of the estate in the house to allow her to continue to live there either during a period of necessary readjustment or even for the remainder of her life.) Her entitlement is also likely to be affected by consideration of her age: although she cannot demonstrate a lifetime\u2019s reliance upon her domestic arrangements with Martin, she can show that she had been committed to this arrangement for a significant period of time and is of an age when a \u201cfresh start\u201d particularly if this requires re-entry into the labour market may be more difficult than if she were comparatively young.<\/p>\n While it is consequently impossible to predict the exact terms of a court order, our client may be assisted by the approach of the court in Churchill v Roach<\/em> [2002] EWHC 3230 (Ch). While this case was admittedly decided under s.1(3) (dependency) rather than s.1(1A), it demonstrates that in where the circumstances deem it necessary, the court will be willing to transfer a residential property to an applicant so as to meet her accommodation needs even if this is in some way qualified (as in Churchill<\/em> by a charge-back in favour of the estate).<\/p>\n RESEARCH TRAIL<\/span><\/strong><\/p>\n 1. I began by consulting Jackson\u2019s Matrimonial Finance and Taxation<\/em> (7th<\/sup> Ed., 2002) and looked in the Index under \u201cfinancial provision\u201d. This however contained references to financial provision ancillary to divorce and was therefore unhelpful to a case of unmarried parties.<\/p>\n 2. I therefore checked the Table of Contents and found Chapter 18, \u2019Maintenance out of Estate\u2019 and the sub-heading \u2019Claims by Cohabitees\u2019 at p.532.<\/p>\n 3. I read on to p.535, \u201cWho may apply\u201d and found footnote 2 on that page which referred to Re Watson<\/em> which I then located and read at [1999] 1 FLR 878.<\/p>\n 4. I then read on to page 554 through the sections on \u201cTests to be applied\u201d and \u201cWhat Orders can be made\u201d finding references (especially at p.547) to Re Coventry<\/em> and Re Rowlands<\/em> which I located and read at [1980] Ch 461 and [1984] FLR 813 respectively. While these authorities were helpful in forming an understanding of the principles applied, neither was especially \u201con point\u201d (Re Coventry<\/em> for example concerns an adult son as applicant.). It became apparent from this reading that the relevant statutory provision was the Inheritance (Provision for Family and Dependants) Act 1975 the text of which I resolved to obtain electronically in due course. I noted that the relevant section in respect of applications by cohabitees had been inserted by the Law Reform (Succession) Act 1995.<\/p>\n\n
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