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Divided justice, different voices: inheritance and family provision
Published online by Cambridge University Press: 02 January 2018
Abstract
Both the Family Division of the High Court and the Chancery Division of the High Court exercise jurisdiction over the Inheritance (Provision for Family and Dependents) Act 1975, with the applicant being able to elect the Division that they wish to proceed in. Many practitioners believe that the two Divisions have different attitudes towards the Act. This paper argues the structure of the 1975 Act makes it highly likely that the two Divisions will approach in different ways and that a close analysis of judgments shows that there is a discernible difference in the rhetoric that is used in judgments in the two Divisions, that this difference in rhetoric affects the way in which applicants are viewed and that thus sometimes it affects the outcome of cases. Since there is no advantage in practice to having the two jurisdictions and since the difference between the jurisprudences in the two Divisions can result in like cases not being treated alike, an elementary form of injustice. The paper concludes that it would be better if one Division exercised sole jurisdiction over the Act.
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- Research Article
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- Copyright © Society of Legal Scholars 2003
References
1 CPR 57.15. Claims of not less than £25,000 are normally dealt with in the county court.
2 Thus, eg both Hand and Green, when discussing the number of applications made under the Act, refer only to the Chancery Division: C Hand ‘Family Provision: Are the RightPeopleReceiving It?’(1980) 10 FamLaw 141 at 141; K Green ‘The English woman's Castle’ (1988) 51 MLR 187 at 205.
3 Murphy and Rawlings use the term ‘glue’ when discussing the rhetoric of House of Lords judgments in W Murphy and R Rawlings ‘After the Ancien Regime: The Writing of Judgements in the House of Lords 1979/80’ (1981) 44 MLR 617 at 617, (1982) 45 MLR 34.
4 Lord Justice Thorpe ‘The Courts and Medical Treatment’ (1996) 26 Fam Law 728 at 729. On the difference between family law practitioners and those practicing in other areas of law, see C Piper ‘How do you define a family lawyer?’ (1999) 19 LS 93.
5 See eg R Deech ‘Financial Relief: The Retreat from Precedent and Principle’ (1982) 98 LQR 62 1.
6 A Mason ‘The Place of Equity and Equitable Remedies in Contemporary Common Law’ (1994) 110 LQR 238 at 239. Thus, eg see Lord Scarman's comment that: ‘[t]here is no precisely defined law setting limits to the equitable jurisdiction of a court to relieve against undue influence. This is a world of doctrine, not of neat and tidy rules. A court in the exercise of this equitable jurisdiction is a court of conscience. Definition is a poor instrument to determine whether a transaction is or is not unconscionable: this is a question which depends upon the particular facts of the case’ (National Westminster Bank v Morgan [1985] AC 686 at 709).
7 S Worthington ‘Integrating Equity and the Common Law’ (2002) 55 CLP 223 at 237. For similar comments, see eg W Winder ‘Precedent in Equity’ (1941) 57 LQR 245 at 245 and Sir Alfred Denning ‘The Need for a New Equity’ (1952) 5 CLP 1 at 2.
8 S Naresh ‘Dependants' Applications Under the Inheritance (Provision for Family and Dependants) Act 1975’ (1980) 96 LQR 534 at 554 n 88.
9 Oughton, R Tyler's Family Provision (London: Butterworths, 3rd edn, 1997) p 347 Google Scholar.
10 E Tyler Family Provision (London: Butterworths, 1971) pp 103–105.
11 Re Coventry [1980] Ch 461 at 474. That relevance is, however, diminishing: Stephenson v Moody [1992] 2 WLR 640 at 502.
12 D Burrows ‘Inheritance Act 1975 – Civil or Family?’ (1996) 26 Fam Law 506.
13 R Oughton Tyler's Family Provision (London: Professional Books, 2nd edn. 1984) p 249.
14 Oughton, n 9 above, p 347.
15 Oughton, n 9 above, p 347 n 18.
16 Second Report on Family Property: Family Provision on Death (Law Com no 61, 1974). The 1975 Act jurisdiction was considered in the Lord Chancellor's Department Interdepartmental Review of Family and Domestic Jurisdiction’ (1986) p 73. Equally, the most important amendment to the 1975 Act, the addition, by s 2 of the Law Reform (Succession) Act 1995, of certain cohabitees to the list of those who can make applications under the 1975 Act, was as a consequence of paras 58–61 of the Law Commission's Report Family Law: Distribution on Intestacy (Law Com no 187, 1989).
17 Per Booth J in Whyte v Ticehurst [1986] 2 All ER 158 at 160.
18 Such statutes have been a feature of English family law for well over 100 years. Ormrod notes that it was a family law statute, the Matrimonial Causes Act 1857, which was the first example of judicial discretion being given to English judges by Parliament: Sir Roger Ormrod ‘Judicial Discretion’ (1987) 40 CLP 123 at 124.
19 ‘Family Property Law’ (Law Com Working Paper no 42, 1971) p 166.
20 Mr E Bishop MP, HC Official Report, SC J (Matrimonial Proceedings and Property Bill), 29 April 1970, col 40. See also Mr Gordon Oakes MP, col 44.
21 Thorpe LJ has gone further arguing that: ‘[t]here does not seem to be a distinction of fundamental principle between providing for the future needs of plaintiffs in personal injury litigation and applicants in proceedings under the Matrimonial Causes Act 1973 or the Inheritance (Provision for Family and Dependants) Act 1975’ (Wells v Wells [1997] 1 All ER 673 at 705).
22 Re Bunning [1984] 3 All ER 1 at 11.
23 Tolstoy, L Anna Karenin (Harmondsworth: Penguin Books, 1954) p 13 Google Scholar.
24 Per Ormrod LJ in Martin v Martin [1977] 3 All ER 762 at 768. See also Scarman LJ in Chamberlain v Chamberlain [1974] 1 All ER 33 at 38; Butler-Sloss LJ in Gojkovic v Gojkovic [1990] 2 All ER 84 at 87; and Ormrod LJ in Sharpe v Sharpe (1981) Times, 17 February. (This appears to be still the case notwithstanding the House of Lords call for the establishment of clear principles in White v White [2000] 2 FLR 981. See Thorpe LJ in Cradle v Cradle [2002] 1 FLR 207 at 214; and D Burrows ‘Reform of Section 25?’ [2001] 3 1 Fam Law 698.) Sharpe v Sharpe has been cited in a number of cases concerned with applications under the 1975 Act as authority for the proposition that no strict system of precedent operates in determining maintenance and property-allocation applications under the Matrimonial Causes Act 1973. See eg Oliver LJ in Re Besterman [1984] Ch 458 at 479; and Vinelott J in Re Bunning [1984] 3 All ER 1 at 8–9.
25 Per Oliver LJ in Re Bestennan [1984] Ch 458 at 479. This remains the approach of the courts with regard to the 1975 Act. See Waite J's comment that’ we do not intend to enunciate any principles that might run the risk of fettering future exercises of the very wide discretion which the Act of 1975 confers' in Moody v Stephenson [1992] Ch 486 at 489.
26 Judicial Studies Board Report for 1983–1987 (London: Judicial Studies Board, 1988) p 17.
27 By ‘rhetoric’ we mean ‘the art of persuasive communication’ ( Vickers, B In Defence of Rhetoric (Oxford: Clarendon Press, 1988) p 1 Google Scholar), the bundle of tropes and allusions going beyond logic, legal or otherwise, that are, within a particular community, powerful argumentative forms used in gaining assent to one's position.
28 Per Booth J in Whyte v Ticehurst [1986] 2 All ER 158 at 160. This was said with respect to a claim by a surviving spouse.
29 Per Wood J in Re Snoek (1983) 13 Fam Law 18 at 19.
30 Re Bramwell [1988] 2 FLR 263.
31 Re Collins [1990] 2 WLR 161 at 166 (emphasis added). For similar use of family law as a source for analogy, see also Whyte v Ticehurst [1986] 2 All ER 158.
32 Per Judge Micklem in Williams v Johns [1988] 2 FLR 475 at 486.
33 Per Dillon J in Legat v Ryder (2 May 1980, unreported).
34 Re Coventry [1979] 2 All ER 408 at 418. In the Chancery Division this passage has been quoted in Robinson v Bird [2003] 3 All ER 190; Re Goodchild, Williams v John [1988] 2 FLR 475; and Legat v Ryder (2 May 1980, unreported). In the Family Division it has been quoted in Re Snoek (1988) 13 Fam Law 18.
35 Re Salmon [1980] 3 All ER 532 at 536.
36 Per Falconer J, quoted by Nourse LJ in Moody v Haselgrove (16 November 1987, unreported); per Scott Baker J in Re Clarke [1991] 21 Fam Law 364 at 365.
37 However, it should be noted that in a Chancery Division family provision case, Judge Micklem said ‘the approach which Brown-Wilkinson J made to an application by an independent, adult son in Re Dennis…must be the same approach as should be adopted with regard to a daughter; there is no difference between the two’ (Williams v Johns [1988] 2 FLR 475 at 488). The belief in the incomparability of cases may not be held as strongly in the Chancery Division as it is in the Family Division.
38 Legat v Ryder (2 May 1980, unreported).
39 Re Snoek (1988) 13 Fam Law 18. The full text of the judgment is to be found on the LEXIS database. The analysis in this article is based on that text.
40 Per Wood J in Re Snoek (1988) 13 Fam Law 18 at 19.
41 Re Snoek (1988) 13 Fam Law 18.
42 [1979] 2 All ER 408.
43 [1980] Fam 72.
44 (1 May 1974, unreported), CA.
45 Re Coventry [1979] 2 All ER 408 at 418.
46 Re Coventry [1979] 2 All ER 408 at 419.
47 Re Coventry [1979] 2 All ER 408 at 419.
48 Re Coventry [1979] 2 All ER 408 at 411.
49 Re Debenham [1986] 1 FLR 404.
50 Per Ewebank J in Re Debenham [1986] 1 FLR 404 at 405.
51 The mother's estate was valued at £172,000.
52 Re Coventry [1979] 2 All ER 408 at 419.
53 S 1(1)(e).
54 Williams v Roberts [1986] 1 FLR 349.
55 Per Wood J in Williams v Roberts [1986] 1 FLR 349 at 353.
56 Per Wood J in Williams v Roberts [1986] 1 FLR 349 at 357.
57 Re Beaumont [1980] Ch 444.
58 Re Beaumont [1980] Ch 444 at 449.
59 Re Beaumont [1980] Ch 444 at 457.
60 Per Wood J in Williams v Roberts [1986] 1 FLR 349 at 351.
61 [1981] 2 All ER 29.
62 See C Straver, A van der Heiden and W Robert’ Lifestyles of Cohabiting Couples and their Impact on Juridical Questions' in Eekelaar, J and Katz, S (eds) Marriage and Cohabitation in Contemporary Society (Toronto: Butterworths, 1980 Google Scholar).
63 Re Beaumont [1980] Ch 444 at 457–458.
64 Per Wood J in Williams v Roberts [1986] 1 FLR 349 at 353.
65 Per Butler-Sloss LJ in Bishop v Plumley [1991] 1 All ER 236 at 242.
66 See Straver, van der Heiden and Robert, n 62 above.
67 B de Sousa Santos ‘The Law of the Oppressed: The Construction and Reproduction of Legality in Pasargada’ (1977) 12 Law and Society Review 5 at 14. See also B de Sousa Santos Towards a New Common Sense (London: Routledge, 1995) pp 40–41.
68 Santos (1977), n 67 above, at 14 and 17.
69 Oughton, n 13 above, p 249.
70 A detailed account of the events which led up to the 1938 Act is to be found in Oughton, n 13 above, pp 9–18.
71 Inheritance (Family Provision) Act 1938, s 1(1).
72 Inheritance (Family Provision) Act 1938, s 1(1).
73 See eg the remarks by Lieutenant-Colonel Heneage and Major Dower in 328 HC Official Reports (5th series) 328 cols 1298 and 1302 respectively.
74 See Memorandum of Chancery Judges to the Lord Chancellor, 2 November 1937 (Public Records Office, Lord Chancellor's Office, 2/1189). The substance of the memorandum is set out in Oughton, n 13 above, pp 16–17. When legislation of the 1938 type had first been mooted, the Chancery judges had accepted the idea in principle (see memorandum from the Chancery judges to the Joint Committee on the Wills and Intestacies (Family Maintenance) Bill (Oughton, n 13 above, p 13)). However, by 1924 their mood had changed and the then Attorney-General, Sir Thomas Inskip, was writing about similar suggested legislation: ‘I find the Bill is regarded with great anxiety – I may also say hostility – by such Chancery judges as I have consulted…’ (Memorandum, 2 March 1934, Public Records Office, Lord Chancellor's Office, 2/1189).
75 See his marginal comment on a letter sent to him by Sir Terence O'Connor, the then Solicitor-General, suggesting the converse (18 November 1937, Public Records Office, Lord Chancellor's Office, 2/1189).
76 328 HC Official Reports (5th series) 328 col 1355.
77 See Memorandum by A Napier of the Lord Chancellor's Office, 11 May 1938(Public Records Office, Lord Chancellor's Office, 2/1189).
78 Report of the Royal Commission on the Dispatch of Business at Common Law (Cmd 5065, 1936) para 72.
79 The Hanworth Committee had made a similar point in a different context with respect to the Probate, Divorce and Admiralty Division (see Second Interim Report of the Business of Courts Committee (Cmd 4471, 1933) para 15). However, judges in the Probate, Divorce and Admiralty Division did not enjoy the advantage of not going on circuit, so the argument can be put even more strongly in relation to the Chancery Division.
80 Royal Commission on Marriage and Divorce (Cmnd 9678, 1956) para 524.
81 Matrimonial Causes (Property and Maintenance) Act 1958, s 3.
82 Sir Henry Lucas-Tooth, 587 HC Official Report (5th series) col 810. There was no Second Reading debate in the House of Commons (583 HC Official Report (5th series) col 1666) and the Bill was not amended during the Standing Committee or Report stages in the House of Commons (587 HC Official Report (5th series) cols 811–812).
83 209 HL Official Report (5th series) col 977.
84 Final Report of the Committee on Supreme Court Practice and Procedure (Cmd 8878, 1953) para 915.
85 Hanworth Committee, n 79 above, para 18.
86 HC Official Report, SC G (Administration of Justice Bill), 17 March 1970, pp 4–5.
87 See eg the comments of Bruce Campbell MP in HC Official Report, SC G (Administration of Justice Bill), 17 March 1970, p 7 and the then Attorney-General, Sir Elwyn Jones, p 15.
88 See eg the comments of the then Lord Chancellor, Lord Gardiner (306 HL Official Report (5th series) cols 197–198) and the then Attorney-General, Sir Elwyn Jones (HC Official Report, SC G (Administration of Justice Bill), 17 March 1970, p 15).
89 Sir Elwyn Jones (HC Official Report, SC G (Administration of Justice Bill), 17 March 1970, p 15)
90 801 HC Official Report (5th series) col 115.
91 Family Property Law (Law Corn Working Paper no 42, 1971) paras 3.4–3.5.
92 Law Corn no 61, n 16 above, para 252.
93 Law Corn no 61, n 16 above, para 253.
94 Law Corn no 61, n 16 above, para 255.
95 358 HL Official Report (5th series) col 917.
96 359 HL Official Report (5th series) col 1080.
97 895 HC Official Report (5th series) col 1685.
98 All government papers in this matter are currently confidential under the 30-year rule.
99 Martyn, J Ross The Modern Law of Family Provision (London: Sweet & Maxwell, 1978) p 42 Google Scholar. See also Barlow, J, King, Land A King Wills Administration and Taxation: A Practical Guide (London: Sweet & Maxwell, 1997) pp 333–334 Google Scholar.
100 See Ross Martyn, n 99 above, p 42; and J Sunnocks, J Ross Martyn and Gamett, K Williams, Mortimer and Sunnocks on Executors, Administrators and Probate (London: Stevens and Sons, 1993) pp 809–810 Google Scholar. See also Practice Direction [1976] 2 All ER 447 at 448.
101 See eg Malone v Harrison [1979] 1 WLR 1353, where the estate was valued at £476,000; and Re Farrow [1987] 1 FLR 205, where the estate was valued at £500,000.
102 Re Farrow [1987] 1 FLR 205 at 209C–209D.
103 (1982) 12 Fam Law 177.
104 [1992] 2 FLR 49.
105 [2002] 2 FLR 603.
106 See Law Com no 61, n 16 above, paras 251–257.
107 See eg n 6 above; and Financial Provision on Divorce: Clarity and Fairness: Proposals for Reform (London: The Law Society, 2003).
108 Thus, see eg analogous arguments in relation property issues after divorce in R Bailey-Harris’ Dividing the Assets on Family Breakdown: The Content ofFaimess' (2001) 534 CLP 533.