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Divorce Settlement Does Not Prevent Later Claim

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

Claims by dependants who are excluded from estates from which they might reasonably expect to benefit can, in appropriate circumstances, be made under the Inheritance (Provision for Family and Dependants) Act 1975. However, divorce settlements normally contain a clause which prohibits a claim against the estate of the first to die being made by the former spouse.

A recent case dealt with an interesting question: what would happen if a divorced couple who had agreed to such a term began to cohabit again some time after their divorce?

In the case in point, the couple had married in the 1970s and divorced in 1981. In 1996, the law was changed to allow a cohabitee to bring a claim against their deceased partner’s estate. A claim under the Act may now be made by:

  • a spouse or civil partner of the deceased;
  • a former spouse or civil partner who has not remarried;
  • a cohabitee of the deceased;
  • a child of the deceased or a person treated as a child; and
  • a dependant of the deceased.

 The two started to live together again but never remarried. When the man died, his ex-wife, who stood to inherit nothing under his will, brought a claim against his estate.

The claim was opposed by the man’s sons. They argued that the divorce settlement prohibited her from making a claim under the Act. They also argued that the two, whilst living in the same house, were not cohabiting.

The High Court ruled that, given the particular facts of the case, there was nothing to prevent the ex-wife’s claim from being brought. The circumstances of those involved had changed sufficiently for the original financial settlement to no longer be applicable. The next phase of court proceedings will be to determine whether in fact she qualifies as a cohabitant.

For advice on any aspect of marriage break-up or on a potential claim on the estate of someone on whom you have been dependent or with whom you have cohabited, contact us.

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