Exploring the Relationship Between Conduct and the “Divorce Fiction” in 1975 Act Claims

In a recent development within probate law, the concept of the “divorce fiction” has been a topic of discussion among legal professionals. This concept draws a comparison between the position of a widowed spouse and that of a divorcing one under the Inheritance (Provision for Family and Dependants) Act 1975. The history of this connection dates back to the early 1970s when the Law Commission recognized the intertwined nature of these two jurisdictions.

The “divorce fiction” refers to the court considering the level of provision that a spouse would have been expected to receive if the marriage had ended in divorce rather than death. This factor is now included in the list of considerations when determining whether reasonable provision has been made under the 1975 Act.

However, there are notable differences between the two jurisdictions, particularly concerning the relevance of conduct of the parties and the quality of the relationship at the time of death or divorce. While conduct can be a relevant consideration in both contexts, the statutory wording sets a higher bar for considering conduct in divorce cases compared to claims under the 1975 Act.

In cases under the 1975 Act, conduct is assessed as a “value judgment,” with the court analyzing the reasonableness of the deceased’s decisions based on the behavior of the parties. The court may consider factors such as the nature of the relationship, the behavior of the parties, and any ongoing reconciliation efforts.

On the other hand, in divorce cases, conduct is categorized into four types, including cases of gross misconduct, dissipation of assets, non-disclosure, and litigation misconduct. The court in divorce cases is reluctant to engage in value judgments or consider the quality of the relationship, focusing instead on the financial aspects of the case.

The article raises questions about the continued relevance of the divorce fiction in 1975 Act claims and suggests a reevaluation of how conduct is considered in these cases. The divergence between the approaches to conduct in divorce and probate cases prompts a discussion on whether it is time to move away from the current narrative and adopt a new approach that focuses on the quality of the relationship without delving into moral judgments.

Overall, the article highlights the complexities and nuances of considering conduct in probate and divorce cases and calls for a reexamination of the existing framework to better serve the interests of all parties involved.