The Rights on Death of Co-Habitants

In the case of Chekov v Fryer and another the Chancery Division investigated whether Ms Chekov could make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The case involved a husband and wife (Mr Fryer and Ms Chekov) who married in the late 1970s and divorced in 1981. The Matrimonial Order at the time of divorce specifically included a prohibition on either party being entitled to claim against the estate of the other under I(PFD)A 1975 unless the parties remarried.

The parties did not remarry and in fact continued to live together. As Ms Chekov was living with Mr Fryer at the date of his death, she sought to claim for reasonable financial provision as a cohabitant under I(PFD)A 1975, s 1(1)(ba) because Mr Fryer’s will had left his entire estate to his two sons from a previous marriage.

The two sons defended the claim. Given that the matrimonial order prevented the parties from bringing a claim under I(PFD)A 1975, the defendants sought to get the claim struck out on the basis that there were no reasonable grounds for bringing the claim. Ms Chekov alleged that there were reasonable grounds for bringing the claim, as the order only prevented her bringing her claim as a former spouse—it did not stop her from claiming as a cohabitant. Further, the right to claim as a cohabitant only came into force in 1996 and the order was made in 1982.

Under I(PFD)A 1975 the categories of people entitled to claim are:

-    spouse or civil partner
-    former spouse or former civil partner who has not formed a subsequent marriage or civil partnership
-    cohabitants
-    a child of the deceased
-    a person who is treated by the deceased as a child of any family in which the deceased stood in the role of a parent, and
-    a dependent

Following consideration of the issues, Deputy Master Matthews concluded in favour of Ms Chekov and held that a former spouse can still make a claim for provision from the estate as cohabitant of the deceased. His justification for this was that if the defendants’ argument was correct, it would mean that a person formerly married to A, but since divorced and cohabiting with B would be able to make a claim against B’s estate on their death. Similarly, a person formerly married to A who then divorced but remarried A would be able to make a claim on their death. However, the same person formerly married to A, but since divorced and then cohabiting with them, as in Ms Chekov’s case, would not be allowed to do so. In making his judgment, Deputy Master Matthews regarded this to be an irrational situation. He therefore concluded that the claim could not be struck out, as there were reasonable grounds for bringing the claim—the defendants’ application was dismissed.


Debbie Sadler

Published on 12/01/2016

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