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Inheritance Act 1975: Claims by Spouses

I have looked at the Inheritance Act in general terms and have also looked specifically at claims by adult children. I now wish to look at claims by spouses as this is different from other applicants.

The court should consider the reasonable provision the spouse requires, whether or not that provision is required for his or her maintenance.


The court initially is required to do a divorce cross check. That is to say, the court should look at what the husband or wife would receive if the marriage had not ended by death, but divorce. This, however, is just a cross check. It is necessary to look at all the other factors.


These are:


(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.


It should be noted that equality is the starting point in financial matrimonial proceedings, but problems have arisen where there are large assets and the marriage is short.

Especially where there is a mix of matrimonial and non-matrimonial assets.


The courts have developed the following principles when dealing with these:

1. The onus lies upon a person asserting that the property of one or other of the spouses is non-matrimonial to prove it.

2. A matrimonial home is usually to be regarded as matrimonial and family property, even if contributed solely by one of the spouses.

3. Property acquired during the marriage, otherwise than by inheritance or gift, is usually matrimonial property, but part of it may not be family property if it has not been acquired for family use.

4. Property pre-owned by one of the spouses is, usually, not so regarded, unless it is then committed to long-term family use.

5. Where one spouse brings to the marriage an existing business, and develops it during the marriage, then its value at the beginning of the marriage may usefully be regarded as non-matrimonial, whereas its increase in value thereafter may be part of the fruits of the partnership, even if wholly derived from the activities of one of the spouses.

6. Where one spouse brings a pre-existing family business to the marriage, it may be positively unfair to have recourse to it for the purposes of equal sharing, in particular if to do so might cripple the business or deprive it of much of its value.


However, in the case of Cunliffe and Fielden 2005 the court noted:

The first point to make is that although this is a short marriage, Mrs Cunliffe entered into it on the basis that her obligations to her husband were of indefinite duration, and could take all manner of forms. He was considerably older than she was. She might well have been expected to spend a number of years nursing an invalid. In short, I think it right to approach the case on the basis that in marrying the deceased, Mrs Cunliffe, like Mrs Miller was entitled to have what Sir Peter Singer described in the latter case as “a reasonable expectation that her life as once again a single woman need not revert to what it was before her marriage” and that she could look forward to financial security for the rest of her life.


As can be seen there are no limits to the matters the court can take in to account.


I have over 20 years experience in dealing with such case and would be happy to help, please contact me.

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