Daniel Watson and Sophia Smout examine the significance of the ‘divorce hypothesis’ in 1975 Act claims in The Law Society Gazette
Daniel and Sophia’s article was published in The Law Society Gazette (pp. 33-34), 6 June 2025, and can be seen here.
Daniel Watson, Senior Associate in our Private Client department, and Sophia Smout, Associate in our Litigation & Dispute Resolution department, explore the evolving role of the ‘divorce hypothesis’ in claims under the Inheritance (Provision for Family and Dependants) Act 1975.
While the Act requires courts to consider a range of statutory factors when determining whether reasonable financial provision has been made for a claimant, one particularly contentious factor in spousal claims is the hypothetical financial outcome had the marriage ended in divorce rather than death.
This ‘divorce hypothesis’, informed by principles such as the ‘yardstick of equality’ from White v White, has at times been treated as a central guide for determining quantum, as seen in Moody v Stevenson. However, later cases, including Re Besterman and Re Krubert, caution against overreliance on this approach, emphasising that all statutory factors must be weighed equally and that the divorce analogy should serve only as a cross-check.
The 2023 case of Re Singh reignited debate by appearing to give the divorce hypothesis significant weight in determining the award, despite formally treating it as a secondary consideration. This has raised concerns about the potential erosion of testamentary freedom, a key distinction between divorce proceedings and 1975 Act claims.
Courts have repeatedly affirmed that while the divorce hypothesis can be a useful tool, particularly in large-asset cases with few competing claims, it must not overshadow the broader statutory framework or the principle that a deceased person’s testamentary wishes deserve respect.
Ultimately, practitioners are reminded that while death and divorce may invite comparison, they are fundamentally distinct legal contexts and conflating the two risks distorting the careful balance intended by the 1975 Act.
Read the full article on The Law Society Gazette website [external link].