Divorcing the divorce fiction: the relevance of conduct in 1975 Act claims

The concept of the “divorce fiction” within claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act) will be familiar to most probate lawyers. This involves drawing a comparison between the position of a widowed spouse and that of a divorcing one. The history of this connection arose in the early 1970s, when the Law Commission recognised that these two jurisdictions, although contextually different, are inextricably linked.[1] Based on these considerations, in order to standardise the position, the “divorce fiction" (by which the court is to consider the level of provision that the spouse would have been expected to receive if the marriage had ended in divorce rather than death) was introduced to the list of factors a court must consider when determining whether reasonable provision has been made under the 1975 Act.[2]

However, there are key differences between the two jurisdictions. One such difference is the relevance of conduct of the parties and the quality of the relationship at the time of either death or divorce, as the case may be.

In both jurisdictions, conduct can be a relevant consideration for the court, but the statutory wording makes clear that there is a difference of approach. While the 1975 Act permits the court to consider “relevant”[3] conduct, the Matrimonial Causes Act 1973 (MCA) only permits conduct to be considered if it would be “inequitable to disregard it”.[4] The bar within a divorce context is therefore higher, and this difference is borne out in the case law.

How is conduct assessed in the 1975 Act context?

The key principles are clarified in Ilott v Mitson [2017] UKSC 17, where the court’s analysis is described as a “value judgment”,[5] implying normative considerations when analysing “the reasonableness of the deceased's decisions”.[6] See, for example, Re Snoek [1983] C.L.Y. 3919, where the court referred to the widow’s “atrocious and vicious behaviour”, in particular towards her terminally ill husband. It was therefore decided that the deceased husband “had not failed to make reasonable financial provision for the applicant by providing nothing” (though a small award was ultimately made to reflect the widow’s contributions at the beginning of the marriage).

Conversely, an applicant who was in a loving and happy relationship with the deceased can be expected to do better in court. In Re Besterman [1984] Ch. 458, the court noted that the widow was “wholly blameless” and indeed that she was “a faithful and dutiful wife”. Similarly, in Re Bunning [1984] Ch. 48 the widow was described as “a loyal, dutiful and hard-working wife”.

Courts are even willing to examine the relationship not only as it existed at the date of death, but the trajectory of any ongoing reconciliation. In P v G (Family Provision: Relevance of Divorce Provision [2006] C.L.Y. 4091, the court found that even though “the future would have been likely to be turbulent, the probability is that the fundamental relationship … would have endured”,[7] and this was taken into account when determining the appropriate award.

That is not to say that conduct should always be raised. Over-reliance on conduct where it is not pertinent, or making exaggerated claims as to conduct which are not supported by the evidence, will be frowned upon by the courts. This may lead to adverse costs consequences.[8]

Ilott clarifies that claims under the 1975 Act are not “rewards for good behaviour on the part of the claimant or penalties for bad on the part of the deceased”. However, this contradicts the court’s tendency to consider how “deserving” the applicant is, which necessarily imposes a moral or value judgment on the parties’ conduct.

Conduct in the divorce context?

In the context of a financial claim upon divorce, there are four types of conduct case: (i) gross and obvious personal misconduct, (ii) cases where one party has wantonly and recklessly dissipated assets, (iii) non-disclosure cases, and (iv) cases involving litigation misconduct. The latter two classes of conduct are inevitably not comparable to the approach under the 1975 Act.

The bar for successfully pleading (mis)conduct under either of the first two categories above is high. In order to be successful under the first category, a party must prove exceptionally serious wrongdoing, likely as serious as attempted murder.[9] They will also need to demonstrate a negative financial impact upon the victim generated by that behaviour (for example, that their financial needs have increased as a result).

The principles applied in cases where one party alleges the other has wantonly and recklessly dissipated assets is best illustrated by MAP v MFP (Financial Remedies: Add-Back) [2015] EWHC 627 (Fam), where the wife alleged that the husband had spent £6,000 per week on drugs (and more on sex workers), and argued that he should effectively receive a lesser share of the assets as a result (as, but for his behaviour, the assets for division would be greater). The court noted that “many very successful people are flawed”, and concluded that while the husband’s behaviour was “irresponsible” it did not amount to “deliberate or wanton dissipation”. It would have been wrong to take into account the husband’s abilities in generating assets for the family whilst effectively punishing him for personality flaws that were part and parcel of his being.

The above demonstrates that courts in the matrimonial context are extremely reluctant to engage in “value judgments” or consider either the quality of a relationship or one party’s behaviour, instead taking each individual as they find them: bad behaviour up to a certain point will not sway a court.

A widowed spouse in a 1975 Act claim may consider it surprising that any analysis of morality may at least in theory, be considered in the context of their marriage in circumstances where it would likely not have been had they divorced.

Concluding thoughts: relationship between 1975 Act and the divorce fiction

The changes introduced to the 1975 Act were designed to bring spousal claims into line with the position on divorce. However, authorities have emphasised[10] the difference between the claims, and the divorce fiction, while of assistance in the context of 1975 claims, must be used with caution.

For now, the divorce fiction lives on. However, there is a clear divergence between the approach to conduct under the 1975 Act, and in the context of divorce. Is it now time to do away with that fiction, and instead write a new narrative that expressly considers the quality of a relationship without an arguably misplaced foray into the realms of the family courts?

[1] Family Law: First Report on Family Property, A New Approach (1973) Law Com No 52 para 61(b) (reiterated in Family Law: Second Report on Family Property, Family Provision on Death (1974) Law Com No 61, para 2(b))
[2] 1975 Act s 3(2)
[3] 1975 Act s 3(1)(g)
[4] MCA s.25(2)(g)
[5] At [24] 
[6] At [17]
[7] [187]
[8] See Lilleyman v Lilleyman [2012] EWHC 1056 (Ch) and Wooldridge v Wooldridge [2016] C.L.Y. 210)
[9] H v H (Financial Relief: Attempted Murder as Conduct) [2005] EWHC 2911 (Fam)
[10] See Fielden v Cunliffe [2005] EWCA Civ 1508

This article was originally published by ThoughtLeaders4.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2024