Claimants
| Author | Nasreen Pearce |
| Pages | 61-125 |
Chapter 4
Claimants
4.1 INTRODUCTION
I(PFD)A 1975, s 1(1), as amended by Law Reform (Succession) Act 1995, s 2,
CPA 2004, s 71, Sch 4, the Marriage (Same Sex Couples) Act 2013 and the
Inheritance and Trustees’ Powers Act 2014, sets out the classes of person entitled
to make an application for an order un der s 2 for f inanc ial p rovision on the ground
that the d isposition of the deceased’s estate effected by their will, or the law of
intestacy, or the combination of their will and that law, is not such as to make
reasonable financial provision for the applicant. These classes are:
(a) the spouse or civil partner of the deceased;
(b) a former spouse or civil partner of the deceased but not one who has formed a
subsequent marriage or civil partnership;
(ba) a cohabitant of the deceased;
(c) a child of the deceased;
(d) any person (not being a child of the deceased) who in relation to any marriage or
civil partnership to which the deceased was at any time a party, or otherwise in
relation to any family in which the deceased at any time stood in the role of a
parent was treated by the deceased as a child of the family;
(e) any person (not being a person included in the foregoing classes) who,
immediately before the death of the deceased, was being maintained, either
wholly or partly, by the deceased.
4.2 SPOUSE OF THE DECEASED
Before 17 July 2013, only a marriage between a man and woman was recognised
as a valid marriage, Since 17 July 2013, when the Marriage (Same Sex Couples)
Act 2013 came into force, marriage between same sex couples is recognised as
valid. Section 11(1) of the Act provides that a marriage has the same effect in
relation to same sex couples as it has in relation to opposite sex couples. All
62 A Practitioner’s Guide to Inheritance Act Claims
legislation passed in England and Wales whenever passed or made has effect in
accordance with this provision (Sch 3, para 1(1)(a) and (b)).
Marriage (Same Sex Couples) Act 2013, Sch 3, para 5(2) defines the meaning
which applies to the expressions ‘husband’, ‘wife’, ‘widow’ and ‘widower’ as
follows:
(a) ‘husband’ includes a man who is married to another man;
(b) ‘wife’ includes a woman who is married t o another woman;
(c) ‘widower’ includes a man whose marriage to another man has ended with the
other man’s death;
(d) ‘widow’ includes a woman whose marriage to another woman has ended with
the other woman’s death;
and related expressions are to be construed accordingly.
Until 4 April 2005 a male–female transsexual and a man could not claim a right
to marry (see Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163).
gender realignment to be recognised in the acquired gender (see, further, below).
4.2.1 Proof of marriage
A claimant spouse of the deceased will have to establish that they were the
deceased’s spouse and that the marriage was a valid marriage recognised under
English law and was subsisting at the time of death.
There is usually no dispute about the identity of the person who was the wife or
husband of the deceased immediately before death, and in most cases the
production of a valid marriage certificate suffices. The parties remain married
until the marriage has been dissolved by a final divorce order (formerly a decree
absolute). The remarriage of the widow or widower of the deceased aft er the claim
under the I(PFD)A 1975 is issued but before the claim is finally determined does
not affect the validity of the claim. It is, however, a factor which the court is
entitled to consider when determining whether reasonable financial provision was
made by the deceased and, if not, what orders the court should make having regard
to all relevant circumstances of the case and the criteria set out in s 3.
In the case where the marriage was not celebrated in the United Kingdom,
the provisions of Family Procedure Rules 2010 (SI 2010/2955) (FPR 2010),
PD 7A provide that the validity of a foreign marriage may be established by the
production of a certified copy of the foreign marriage where the existence and
validity of the marriage is not in dispute. Where the marriage certificate is in
a foreign language, a translation of the documen t certified by a notary public
Claimants 63
or authenticated by a statement of truth will be required (FPR 2010, PD 7A,
para 3.1).
Where there is any doubt about the valid ity of a foreign marriage, the claimant’s
evidence of the formalities of that marriage, the production of a certified co py of
the marriage certificate, if available, and the evidence where appropriate of an
expert in the local law to establish that the marriage certificate would be accepted
in the country of origin of a valid marriage will be required.
Where a marriage certificate is not available, the claimant’s evidence,
corroborated by any witness who was present at the ceremony of the marriage,
describing the formalities of the ceremony, and the evidence of an expert in the
local or customary law to confirm that the formalities described would be
accepted in the country of origin as evidence of a valid marriage, will be
necessary. Where the foreign marriage certificate issued overseas has been lost
and a certified copy cannot be obtained, for example due to civil war , the pro blem
may be overcome by following the procedure in family proceedings for
dissolution of marriage set out in FPR 2010, PD 7A, paras 3.3 and 3.5 and
explaining, in a written statement made by the applicant or the lawyer
representing the surviving spouse, circumstances of the loss/un availability of the
certificate, and the efforts, if any, that have been made to obtain a certified copy
or other reason why a copy cannot be obtained.
Where the parties have gone through a ceremony of marriage in accordance with
customary law, it is for the claimant to establish that the ceremony of marriage
complied with customary law and would be recognised as a valid marriage in the
country where the marriage occurred. It is possible to challenge the validity of a
customary marriage on the ground that the ceremony did not comply with the
customary law or on the basis that one of the parties to the marriage lacked
capacity or the necessary intention to marry and that the actions of that party
during the ceremony were equivocal (see A-M v A-M (Divorce Jurisdiction:
Validity of Marriage) [2001] 2 FLR 6). In some cases, resolving the issue of
whether or not a subsisting marriage exists can result in long-running litigation.
[2006] 1 FLR 1074; MT v T [2006] EWHC 2494 (Fam), [2007] 2 FLR 925; M-T
v T (Marriage: Strike Out) [2013] EWHC 2061 (Fam), which took a decade to
resolve. MO v RO [2013] EWHC 392 (Fam) is another Nigerian case where the
court, having heard the evidence of an expert in Nigerian law and numerous
family members, concluded on the balance of probabilities that the parties did not
participate in customary or civil marriage, that the applicant had assumed the
respondent’s first wife’s identity and had become well practised in deception. In
some instances, the court may need to determine not only whethe r a customary
marriage took place, but also whether it h ad been validly dissolved under
customary law. In GE v KE [2013] EWHC 1938 (Fam), two women claimed to
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