Chekov v Fryer & Anor

Factual and Procedural Background

This opinion addresses an application by the Defendants to strike out the Claimant's claim under CPR r 3.4 on the basis that the statement of case discloses no reasonable grounds for bringing the claim, or alternatively that the claim is an abuse of process or there has been failure to comply with procedural rules. The claim arises under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision following the death of the testator, the Claimant's former spouse.

The Defendants are the two sons and executors of the will of the deceased, who was divorced from the Claimant in 1981. A financial provision order was made in 1982, which included a provision that neither party could claim against the other's estate under the 1975 Act unless they remarried. The parties never remarried but were living together at the time of the deceased's death. The Claimant contends that she qualifies as a cohabitant under the Act, while the Defendants argue that as a former spouse subject to the 1982 order, the claim is barred as a matter of law.

Legal Issues Presented

1. Whether the Claimant's claim discloses reasonable grounds for bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975, given the 1982 court order excluding claims unless the parties remarried.
2. Whether the Claimant, as a former spouse barred by a section 15(1) order, can nonetheless make a claim as a cohabitant under section 1(1)(ba) of the 1975 Act.
3. The proper interpretation of section 15(3) of the 1975 Act in relation to applications by former spouses who cohabit but have been excluded by a prior court order.

Arguments of the Parties

Defendants' Arguments

• The 1982 order under section 15(1) of the 1975 Act bars the Claimant from making any application under section 2 of the Act, including as a cohabitant, by virtue of section 15(3).
• The Claimant, as a former spouse, falls within paragraph (b) of section 1(1), and thus cannot rely on the cohabitation provision in paragraph (ba), which excludes persons included in paragraphs (a) or (b).
• The statutory language is clear and must be applied literally to exclude the Claimant's claim as a matter of law.

Claimant's Arguments

• The 1982 consent order could not have excluded a right to claim as a cohabitant because that right did not exist at the time it was made (introduced only in 1996), so the order should not be construed to exclude such a claim.
• Even if the order could be so construed, it is merely an agreement between parties and should not be treated as absolutely binding in all circumstances, by analogy with prenuptial agreements.
• The cohabitation provision in section 1(1)(ba) should be construed purposively to allow a former spouse who cannot claim as such to bring a claim as a cohabitant, focusing on the capacity rather than identity of the person.
• It would be irrational and inconsistent with policy to allow some former spouses who cohabit to claim but not others, depending on their identity, and the court should interpret the statute to avoid such an illogical result.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by clarifying the procedural nature of the application under CPR r 3.4, focusing on legal grounds rather than factual strength. It proceeded on the assumption that the Claimant could prove the factual basis of cohabitation.

The court rejected the Claimant's argument that the 1982 consent order could not exclude a right to claim as a cohabitant because such a right did not exist at the time. The court held that the order's function was to satisfy the condition for section 15(1) to operate, and once in effect, section 15(3) bars applications by the other party to the marriage.

The court also rejected the Claimant's analogy of the consent order to a prenuptial agreement, emphasizing that a consent order is a court order with binding effect, not merely an agreement between parties.

The critical issue was the interpretation of section 15(3), which prohibits the court from entertaining applications by the other party to the marriage under section 2 of the Act. The court held that section 15(3) must be read in context with section 15(1), which was enacted before the cohabitation provision was introduced in 1996.

Therefore, the court interpreted section 15(3) as only barring claims by former spouses under section 1(1)(b), not claims under the cohabitation provision in section 1(1)(ba), which was introduced later. The court reasoned that the statutory language in section 1(1)(ba) excludes persons included in paragraphs (a) or (b) who are able to apply as such, but a former spouse barred by a section 15(1) order is not able to apply as a former spouse and thus may fall within the cohabitation category.

The court rejected the Defendants' argument that this interpretation would render the exclusion words meaningless, explaining that the exclusion still operates for former spouses not subject to a section 15(1) order.

In conclusion, the court found that the Claimant's claim as a cohabitant is not barred as a matter of law and that the strike-out application must be dismissed.

Holding and Implications

The Defendants' application to strike out the claim is dismissed.

The court held that a former spouse who is barred by a section 15(1) order from making a claim as a former spouse under the 1975 Act may nonetheless bring a claim as a cohabitant under section 1(1)(ba) if the factual requirements are met. The decision clarifies the interpretation of sections 15(1) and 15(3) in relation to claims by former spouses and cohabitants, but does not establish new precedent beyond this case. The direct effect is that the Claimant's claim will proceed to trial on the basis that it discloses reasonable grounds.