IHTM28092 - Liabilities: investigating liabilities: claims for relief for divorce under the Matrimonial Causes Act or dissolution of a civil partnership under the Civil Partnership Act 2004

This instruction applies to estates in England, Wales and Northern Ireland only.

The position with regard to claims for financial relief under the Matrimonial Causes Act was stated by Denning LJ in Sugden v Sugden [1957] P 120 at page 135, ‘In [the Divorce Court] there is no right to maintenance or to costs, or to a secured provision, or the like, until the Court makes an order directing it. There is, therefore, no cause of action for such matters until an order is made.’

In Whytte v Ticehurst [1986] 2 WLR 700 Booth J reviewed the case law and developments in matrimonial legislation and concluded at page 705, ‘In my judgement it follows that the principles stated by Denning LJ in Sugden v Sugden [1957] P 120 continue to apply and that it must still be the case that no enforcement right exists until an order is actually made.’

This means that you can only allow a deduction if

• an order was made, or
• an enforceable agreement was entered into before the deceased died.

You should adopt the same approach when dealing with deductions relating to financial relief under Sch 5 (in England and Wales) or Sch 15 (in Northern Ireland) of the Civil Partnership Act 2004 (IHTM11032)

You should refer a case that seems likely to be contentious to Technical.