Family provision claims

Family provision claims—preliminary issues

Before the court can exercise jurisdiction it must be proved that the deceased died domiciled in England and Wales. The question of domicile can be a complex issue but broadly, it will depend on the deceased’s:

  1. domicile of origin

  2. domicile of choice: this does not replace the domicile of origin but may suspend it

Where the deceased’s domicile is contended, it is for the claimant to prove domicile on the balance of probabilities. Proof of death is also an obvious prerequisite of an application and the burden of proof of that also rests with the claimant.

Proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) in the High Court are assigned to either the Chancery Division or Family Division, depending on the claimant's choice. Proceedings can also be issued in the County Court.

See Practice Note: Family provision claims—preliminary issues.

Domicile and habitual residence

There are significant differences between domicile and habitual residence: habitual residence is generally a question of fact whereas domicile is a legal concept. There are also differences in

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Monumental Supreme Court decision on matrimonialisation and sharing principle (Standish v Standish)

Family analysis: The Supreme Court’s much-anticipated judgment confirms unequivocally that the sharing principle does not apply to non-matrimonial property. Sharing of matrimonial property will usually be 50:50, though there may be a departure from equal division where justified. Non-matrimonial property typically has either a pre-marital origin, or, where it is received during the currency of the marriage, an external source (eg an inheritance). Title to an asset is expressly not determinative as to whether that asset is or is not matrimonial. Though non-matrimonial property may become matrimonial (ie ‘matrimonialisation’) this will depend on how the parties have been dealing with the asset and whether, over time, they have been treating that asset as shared between them. The concept of matrimonialisation is to be applied neither ‘widely’ nor ‘narrowly’ (contrary to what the Court of Appeal had held)—again, the enquiry should focus on how the parties have dealt with the asset. Where an asset is transferred from one spouse to another with the intention to save tax (as had occurred in the case), this will not normally show that the asset is being treated as shared. The Supreme Court ultimately upheld the decision to dismiss the wife’s appeal, though it did not wholly agree with the Court of Appeal’s reasoning. Pursuant to that decision (made on the sharing basis) the wife would be provided with circa £25m of the total assets figure of circa £132.6m, being half of the matrimonial assets figure of £50.48m. David Wilkinson, solicitor at Slater Heelis, considers the judgment.

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