Witkowska v Kaminski

This is an appeal, with a cross-appeal, against the decision dated 26 July 2005 of His Honour Judge Cowell sitting in the Central London County Court in proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) concerned with the estate of the late Konrad Kaminski (“the deceased”) who died on 6 October 2002 aged 75. The deceased died wholly intestate.

The claimant, Mrs Janina Witkowska, claimed reasonable financial provision out of the estate. She did so both under sections 1(1)(ba) and 1(1A) of the Act, ie as someone who - not being the wife or a former wife of the deceased - “during the whole of the period of two years ending immediately before the date when the deceased died… was living - (a) in the same household as the deceased, and (b) as the …wife of the deceased” (“the s1(1)(ba) claim”), and also under section 1(1)(e) of the Act, ie as someone “…who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased” (“the s1(1)(e) claim”).

The claims were resisted by the defendant, Richard Kaminski, who is the deceased's only child. Unlike his parents, who were Polish in origin, the defendant was born in this country, in fact in London in January 1959. He was therefore 43 at the time of his father’s death. The deceased having died a widower, the defendant is solely entitled to the deceased’s estate by reason of the intestacy.

The defendant obtained a grant of letters of administration of the deceased’s estate on 12 June 2003. The claimant issued these proceedings just under six months later on 1 December 2003.

As at 9 August 2004, the deceased’s net estate was estimated at just over £193,000. Its principal assets comprised a half share in the deceased’s former home at 15 West Lodge Avenue, Acton, London W3 (“№ 15”) - the other half share having been gifted to the defendant in about 1994, savings and shares worth about £87,500 and the £9,500 remainder of a legacy of £10,000 given to the deceased by his sister-in-law’s husband, a Mr Wloch. The £193,000 figure was calculated after payment of debts, inheritance tax, administration expenses and the amount of a costs order arising in these proceedings and directed to be made out of the estate, but otherwise before the costs of this litigation. By the time of the trial, № 15 had been sold so that the estate consisted entirely or very nearly entirely of cash.

I was told that the costs of the proceedings below, a substantial portion of which, by the terms of the judge’s order, will fall to be met out of the estate, have not been assessed but are expected to be of the order of £50,000.

The relevant facts as found by the judge are as follows.

The claimant had lived and worked in Warsaw. She ceased working in February 1990 and thereupon became a Polish pensioner. At that time she was just short of 50 years old, having been born on 9 August 1940. In 1990 her husband died leaving her and her only son, Jaroslaw, then aged 25; they lived in a flat in block in Warsaw. The claimant had never been to England, but she obtained permission from the appropriate authorities to come to England. She arrived on 10 January 1997. Her passport was stamped “Leave to enter for six months. Employment and recourse to public funds prohibited.” She lived first with a family in Fulham. She spent some time and money visiting the sites of London. At a centre for her compatriots, known colloquially as “The Posk”, near Hammersmith she met the deceased. By July 1997 she was living at № 15 and, apart from relatively short absences in Poland, she was to live with him as if husband and wife until, at the earliest, 18 June 2002 when she returned to Poland. Altogether they lived together for about five years.

The deceased had become a widower in 1994 when his wife of many years and the mother of the defendant died. № 15 was a three-storey house, the first and second floors being tenanted by Polish speakers for most of the time, while he lived on the ground floor. He had given a half share in the house to the defendant in about 1994. The claimant shared the ground floor with the deceased, which included a twin-bedded bedroom. The claimant’s son made two short visits with his girlfriend for about a week at the end of December 1997 and for about ten days in July 2001. The claimant’s niece, a Miss Pasternak, together with her boyfriend who lived in England, would visit the claimant and the deceased on occasions.

The claimant and the defendant disliked each other, and the deceased knew it. The deceased was given to heavy drinking but the claimant was a good influence on him. Her care of him alleviated, to some extent, that propensity and alleviated to a greater extent the increasing loneliness he felt after his wife’s death. The two were in love with one another and, as the judged put it, each provided the other “with that care and comfort which is one of the three purposes for which marriage is ordained” (see paragraph 14). On 6 October 1997, which was within about three months of the start of cohabitation, the deceased sent £3000 to the credit of the claimant’s bank account in Poland. The claimant returned to Poland at the latest by 23 February 1998 where she remained for about six weeks until she returned to this country (again on a 6 month visa, issued on the same terms as her initial entry visa) in early April. Her flat in Warsaw was sold on 6 March 1998 and № 46 was purchased by her on 12 March 1998. A large part of the fitting out costs of № 46 was paid for by the claimant’s son, who with his girlfriend has lived at № 46 since its purchase.

Apart from the £3000 which the deceased sent to Poland prior to those transactions, he also sent £1000 on 30 June 1998 which was almost two months after she had returned from Poland and, on 3 March 1999, sent a further £2000 to her bank account in Poland.

In 1999 the deceased finally retired in the sense that he never again worked for remuneration. He was then nearly 72 years old.

In about October 1999 the claimant went to Poland for approximately six weeks living at № 46. She then remained in England until 18 June 2002 when she went back to Poland. In Poland, she went to the wedding of a nephew and thereafter to underwent medical tests. The deceased gave her £2000 when she left for Poland. While she was there he attempted to send her four packets, each containing £250 in cash, although one of those four packets did not arrive. They were sent on 24 July and 1, 6 and 12 August 2002. She did not spend those sums. During her absence in Poland the claimant and the deceased were in regular, almost daily, telephone communication. On 2 July the deceased sent a parcel to the claimant in Poland. On 8 July she wrote him a letter and later sent him four postcards.

On 27 September 2002 the deceased had an accident and was thereafter in hospital. One of the Polish tenants at № 15 telephoned the claimant about this. At first she was dissuaded by the defendant from coming over to see the deceased but later decided to come. She arrived on 6 October 2002. She was just too late as the deceased died earlier that same day.

With the exception of a few weeks in Poland in the spring of 2003, the claimant has since remained in this country staying variously with her niece, friends and for two years with an elderly lady whom she looked after in return for paying no rent.

After setting out the facts as I have summarised them, the judge summarised the claimant’s financial position. That was that she has a Polish pension worth, in sterling and net of tax, £3,900 a year, savings the sterling equivalent of which by November 2004 amounted to £20,000, and her property in Poland, № 46, worth at least £25,000 but probably nearer £30,000. He then stated that the claimant’s living expenses in London were estimated at £220 per week as at November 2003. That figure did not take into account what it would cost the claimant to find or rent a place of her own in London. The evidence before the judge established that renting a single room in Hillingdon, in west London, would cost £3,600 a year, renting a one bedroom flat in Ealing would cost £7,800 a year, and that the purchase of a long leasehold flat in the west London area to accommodate one person would cost between £110,000 and £185,000.

Then, after summarising the value of the deceased’s net estate for the purposes of the Act, namely the figure of £193,000 odd to which I have referred earlier, the judge summarised the respective approaches of the parties to the claims. Those were that the defendant denied that the claimant should receive anything at all whereas the claimant was effectively claiming the entire net estate. He noted that the defendant had not sought to claim that he had any particular need for the estate.

The judge then set out the relevant provisions of the Act and pointed out, correctly, that, under both limbs of her claim, reasonable financial provision meant “…such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for [her] maintenance”. He directed himself, again correctly, that the court was required to consider whether the disposition effected by the intestacy was not such as to make reasonable financial provision for the claimant and, if not, whether and in what manner it should exercise its powers under section 2, and that, in answering those questions the court was to have regard to the various matters set out in section 3(1). He then drew attention to the particular provisions concerned with a claim brought under section 1(1)(ba) of the Act, in addition to paragraph (g) and the matters specifically mentioned in paragraphs (a) to (f) of section 3(1), namely: “(a) the age of the applicant and the length of the period during which the applicant lived as the husband or wife of the deceased and in the same household as the deceased” and “(b) the contribution made by the applicant to the welfare of the family of the deceased, including any contributions made by looking after the home or caring for the family”. He then referred to section 3(4), concerned with claims under section 1(1)(e), namely that the court must have regard to:

“…the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant, and to the length of time for which the deceased discharged that responsibility.”

He then drew attention to section 1(3) of the Act, also concerned with a claim under sub-section (1)(e), namely that:

“A person shall be treated as being maintained by the deceased, either wholly or in part, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money’s worth towards the reasonable needs of that person”.

Against that factual and statutory background, the judge’s conclusions were as follows.

Dealing first with her s.1(1(e) claim, he found that the claimant established that she was a person who, immediately before his death, was being maintained either wholly of partly by the deceased. He did not consider that she was disqualified from being so treated by the operation of section 1(3) of the Act. He was satisfied, but “only just” (see paragraph 53), that the disposition of the deceased's estate effected by his intestacy was such as not to make reasonable financial provision for the claimant’s maintenance. He concluded that reasonable financial provision for her maintenance out of the deceased’s estate should be “in the region of providing about a further £50 a week, that is something in the region of £2,600 a year, certainly sufficient to maintain her in Poland”.

Coming next to her s.1(1)(ba) claim, the judge found, “if it were necessary”, (see paragraph 70) that the claimant fulfilled the requirements of section 1(1A) in that during the whole of the period of two years ending immediately before the deceased’s death she was living in the same household as the deceased and as the deceased’s wife. He acknowledged (at paragraph 72) that the conclusion was “one of the most difficult he had ever been required to draw from a host of primary facts”. His description of the finding as one he reached “if it were necessary” is a reference to the fact that he had already found in the claimant’s favour in respect of her s.1(1)(e) claim and to his conclusion (at paragraph 61) that her s.1(1)(ba) claim would not result in any substantially different award from the award he had made in her favour in respect of the s.1(1)(e) claim.

The claimant applied for permission to appeal against the judge’s decision. She did so on a number of grounds. At a hearing before Warren J, Mr Philip Noble, who had appeared for the claimant at the trial and who has represented her on this appeal, was able to persuade the court to give the claimant permission to appeal on what Warren J referred to as “the treatment [by the judge below] of the residence of the [claimant] in the United Kingdom”, namely, the recognition by the judge below that the maintenance he was awarding the claimant was inadequate to meet her needs if she were to continue to live in England. He was also attracted by a point raised by Mr Noble under article 12 of the EC Treaty and described by Warren J as “the underlying EU point”. Article 12 provides that:

“Within the scope of application of this treaty and without prejudice to special provisions therein any discrimination on the grounds of nationality shall be prohibited.”

Subject to that point, summarised by Warren J as “a potential of the wrong application of principle in relation to residence”, permission to appeal was refused on the other grounds set out in the claimant’s Appellant’s Notice.

Mr Noble identified the surviving grounds as grounds four, six and seven of that Notice, namely:

“4.

Fixing the level of reasonable maintenance that would be paid to the claimant on the basis that she had a home in Poland and that it was therefore unreasonable that she should have maintenance to enable her to continue to live in a country where she has now resided for some 8 years;

…

6.

In giving an order for maintenance which was wholly inadequate to allow the claimant to continue to live in the UK and which would effectively force her return to Poland to live in a property that she had provided for her son and his partner;

7.

In any event by failing to assess the claimant’s reasonable needs by reference to the state of affairs at the date of trial when she was lawfully entitled to live in the United Kingdom as opposed to at the date of death when she was by and large an illegal overstayer in this country.”

It is to be noted that the grounds of appeal do not attack the judge’s conclusion (at paragraph 53) that £2,600 per annum constituted adequate maintenance (over and above the claimant’s other income and resources) to enable her to live in Poland. Moreover, no submissions were addressed to me to suggest that such a sum would not be adequate, much less that, in fixing on that sum, the judge’s conclusion was open to attack other than on the ground that he should have approached the question of maintenance on the basis of what was reasonable for her to receive to enable her to live in this country (and indeed in London).

In reaching his conclusion that her s.1(1)(e) claim succeeded to the extent of £2,600 per annum to enable her to be maintained in Poland, the judge found (at paragraph 41) that a sum made up of several payments totalling £6,000 sent by the deceased to Poland between 6 October 1997 and 3 March 1999 was “substantially” the deceased’s money and that he had sent the payments to help the claimant to move from the flat she owned in the block in Warsaw to № 46 and that this was “to enable her to have a far more pleasant place to reside in than the flat”. He also found (at paragraph 42) that as a result of his provision to the claimant of rent-free accommodation, a large proportion of the food and similar expenditure on household matters, gifts of clothes, items of jewellery and the like “as would a husband give a wife”, together with the various cash payments, the deceased “assumed some responsibility for her maintenance”.

At paragraph 43 of the judgment, the judge had this to say about what he described as “the basis on which [the deceased] assumed … responsibility for [the claimant’s] maintenance”:

“There are two aspects of it. While she was with him in this country he provided that accommodation and the daily needs that she had, and all the extras that I have mentioned. While she was away he provided for her both in enabling her to live in Poland in a better place at № 46 and by sending her money to use - either to spend over there or to be shown, if necessary, on her entry to England to prove that she could maintain herself during her six months stays. The basis upon which he assumed responsibility was, it seems to me, that were he to pre-decease her, as was likely as he was thirteen years older, she would probably have to return to Poland to № 46 which he had helped her to buy. He knew she had no right to stay for more than six months, and was prohibited from working here. She had her principal family tie in Poland in that her only son was there. She could not speak English. She might have no cause to stay in London.”

The judge then added (at paragraph 44):

“He also knew that № 15 belonged half to his son and might not provide her with a home after his death, certainly not a happy home. He made it clear to her that he would not marry again, even if that decision was influenced by his son…”

It is abundantly apparent therefore that a major consideration in the judge’s conclusion that reasonable provision for the claimant ‘s maintenance should be confined to what was sufficient, over and above her own financial resources, to enable her to maintain herself in Poland, was the continued existence of the claimant’s ties in Poland, not least her son who was her only child, the fact that she had her own home there, albeit occupied by her son and his partner, the fact that she had returned to Poland from time to time (for example she went departed to Poland on 18 June 2002, living at № 46, and continued to remain there until 5 October 2002 when, having heard of the deceased's accident, she returned to this country arriving only on the day of his death, 6 October 2002), and the fact that the deceased expected that she would return to Poland following his death. It is also evident that the judge was influenced in his decision that, if the reasonable maintenance was to be judged by what she needed to maintain herself in London (ie to meet her daily living costs and provide her with somewhere to live), the award would effectively swallow up the whole of the estate (as against the £30,000 or so needed to provide her with an annual £2,600). This was a result that (at paragraph 55) the judge regarded as “extravagantly optimistic”. He also added (at paragraphs 57 to 58):

“57.

…It seems to me, in this case, that one cannot ignore the fact that the deceased envisaged that, when their happy life together came to an end, in all probability the Claimant would return to Poland. She would have no further ties in this country.

58.

The reason why I consider some effect has to be given to that is that the assumption of responsibility is always in these cases important and the assumption of responsibility undertaken by the deceased in this case was to the effect that she would not remain, in all probability, in this country.”

I am of the view that, on the material before the judge so far as reflected in the findings of fact set out in his judgment (and it was not suggested by Mr Noble that there were other matters which the judge had failed to consider) and subject to Mr Noble’s article 12 point and to the defendant’s cross-appeal, the judge’s conclusion with respect to the section 1(1)(e) claim - effectively that reasonable maintenance was confined to what, over and above her own resources, was needed to enable the claimant to maintain herself in Poland - was one which the judge was well entitled to reach. His references to the extent to which and basis upon which the deceased assumed responsibly for the claimant’s maintenance are matters to which the judge was not only entitled but required to have regard when considering the claimant’s section 1(1)(e) claim. See section 3(4) of the Act.

Mr Noble submitted that in reaching his conclusion on the s.1(1)(a) claim the judge failed to have regard to section 3(5) of the Act (requiring the court to “take into account the facts as known to the court at the date of the haring”) since, by the time of the trial in July 2005, the claimant had been in this country for eight years, wished to remain here and, moreover, by reason of Poland’s accession to the European Union in May 2004, was no longer an illegal overstayer (as admittedly she had been for most of the five years that she was with the deceased in this country). The judge was wrong, said Mr Noble, to consider the matter as if the passing of time since the deceased’s death in October 2002 had not occurred.

I do not accept that the judge was unmindful of the need to consider facts as at the date of the hearing or, in particular, of the change in the status of Polish nationals as a result of Poland’s accession to the European Union. His awareness of the former is evident from numerous references in the judgment to facts and matters occurring after the deceased’s death. His awareness of the change of status of Polish subjects following Poland’s accession is evident from paragraph 26 where the judge refers to the claimant’s presence in this country having “become lawful from 1^st May 2004”. In particular I do not consider that it is an accurate understanding of the judgment to say, as ground 7 of the Grounds of Appeal appears to do, that the judge's decision with regard to the level of maintenance assumed that the claimant’s residence in this country continued to be unlawful.

In fact, as Ms Josephine Hayes for the defendant pointed out and unbeknown to counsel and the court at the time of the trial because the point had not been properly researched, the claimant was in all likelihood still without any right of residence in this country despite Poland’s accession to the European Union. See the Accession (Immigration and Worker Registration) Regulations 2004 (as amended) and regulations 3(1)(e), 5, 14 and 21(3) of the Immigration (European Economic Area) Regulations 2000 (as amended), the effect of which, so far as material, is that for a period of five years from the date of accession to the European Union Polish nationals (among others) are only permitted to reside in the United Kingdom without the requirement for leave to remain under the 1971 Immigration Act for so long as the person in question (a) “has sufficient resources to avoid his becoming a burden on the social assistance system of the United Kingdom” and (b) “is covered by sickness insurance in respect of all risks in the United Kingdom”. Relevant to these provisions is that it has not been suggested that the claimant fulfilled the necessary qualifications if she is lawfully to remain in this country. In the upshot this is a matter which, if well founded (and Mr Noble was unable to suggest that it was not), may be thought to add some support to the judge’s conclusion.

What then of the article 12 point? In my view, this provision is irrelevant to the judge’s consideration of the claimant’s application under the Act. It is to be noted, as Ms Hayes pointed out, that the article only operates “within the scope of application of this treaty”. She submitted, and I agree, that the EC Treaty has no application to the substantive law of succession to a deceased person’s estate, whether by will or on intestacy or, in my view, by force of a jurisdiction, such as is conferred by the Act, to alter the manner in which a will or intestacy would otherwise operate in respect of a person’s estate.

That apart, it does not seem to me that the judge’s decision was discriminatory “on grounds of nationality”. Mr Noble submitted that in limiting the award to £2,600 per annum as being sufficient to enable the claimant to maintain herself in Poland, the judge was effectively forcing her to return to Poland. (This is the thrust of ground 6 of the Grounds of Appeal.) In my view, the judge was saying no more than that, given the basis on which and extent to which the deceased assumed responsibility for her maintenance, and given the other circumstances of her claim, reasonable financial provision out of the deceased’s estate was fulfilled by an award sufficient to enable her to maintain herself in the place, as it happens Poland, where her family ties were, where she had a house and where, until she came to London in 1997 and formed her relationship with the deceased, she had lived. The provision made for her is not conditional upon her return to Poland. She remains free, subject to immigration law, to remain in this country as she has evidently done for most of the time since the deceased’s death.

At one stage in the course of his submissions it was not clear whether Mr Noble had in mind article 14 of the European Convention on Human Rights rather than article 12 of the EC Treaty. (His skeleton argument made no reference to article 12 but to article 14 instead.) Article 14 of the Convention states that “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as … national … origin …”. He coupled this with a reference to article 2 of the Fourth Protocol to the Convention to the effect that “everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”.

Over and above the fact that this is a point which was not raised on the application for permission to appeal, does not feature in the grounds of appeal, and was not referred to, any more than article 12 of the Treaty was, before the judge below, any suggestion that this convention right (article 14) was infringed is likewise without substance. Moreover, article 14 is not a freestanding guarantee of equal treatment but relates to the substantive rights and freedoms set out elsewhere in the Convention. Article 2 of the Fourth Protocol, to which Mr Noble referred, is not one of the Convention rights to which the Human Rights Act 1998 applies. This is because the Fourth Protocol has not yet been ratified by the United Kingdom. See section 1(1) of that Act.

In the circumstances, therefore, I am not persuaded that the judge’s decision in respect of the s.1(1)(e) claim is open to successful challenge on any of the grounds for which the claimant has permission to appeal. It follows that her appeal must be dismissed.

That brings me to the defendant’s cross-appeal brought with the permission of David Richards J given on 10 July 2006. In the light of my dismissal of the claimant’s appeal only the third, and possibly the first, of the three substantive grounds of appeal fall for decision, but I will deal with all three.

The first ground of appeal is founded on the judge’s finding that the claimant was an illegal “overstayer” in this country contrary to the Immigration Act 1971 for most of the time that she lived in this country with the deceased, or at any rate on the expiry of her successive six-month visas during that period and, on any view, between 25 May (on expiry of the visa granted to her when she returned to this country from Poland in October 1999) and 18 June 2000 when she next returned to Poland where she remained up to the time of the decease’s death. He concluded that the section 1(1)(ba) claim could not be dismissed simply because the claimant had to rely to any significant extent on her presence in this country as an illegal overstayer. He regarded that fact as going to discretion.

This ground of appeal maintains that it was not open to the claimant - and the judge should have so directed himself - to assert that she was an eligible applicant within sections 1(1)(ba) and 1(1A) as someone who had lived in the same household as the deceased and as his wife for any of the two year period ending with his death on 6 October 2002 since, in so claiming and since the deceased was in this country throughout the time that she lived with him, she was seeking a benefit or advantage in reliance on her own unlawful act. Although, as set out in the grounds of appeal, the point is directed to the judge’s decision so far as it related to the section 1(1)(ba) claim and therefore is irrelevant to the decision so far as it relates to the section 1(1)(e) claim, Ms Hayes sought to extend it to the latter claim on the basis that, in the course of his submissions in support of the claimant’s appeal regarding that claim, Mr Noble placed emphasis on the fact that the claimant had been in this country for eight years and wished to remain here.

The illegality argument had been raised by Ms Hayes before the judge. At paragraph 80 of the judgment, however, the judge recorded that the argument “did not arise in relation to the claim under paragraph (e) because the actual maintenance did not necessarily involve the Claimant’s presence in England”. In short, Ms Hayes, as she confirmed, did not seek in the court below to raise the argument in defence of the section 1(1)(e) claim. She did not do so notwithstanding that it must have been plain that the claimant wished to remain in this country, that by the time of the trial, apart from the periods noted in the judgment, the claimant had been resident in this country for eight years, that until, at the earliest, May 2004 that residence had been for the most part illegal, and that the claimant was relying on her years in this country when seeking maintenance sufficient to enable her to remain here.

I need not consider whether it is open to the defendant to rely on the illegality argument in order to attack, to any degree, the judge’s finding that the claimant established a right to be maintained at the expense of the deceased’s estate since I am of the view that the argument is in any event one that should be rejected.

Ms Hayes submitted, in reliance on Bennion on Statutory Interpretation, fourth edition, that, having regard to the principle that unless a contrary intention appears, an enactment by implication imports that a person alleging his own wrongdoing is not to be heard and, similarly, that no one should profit from his own wrongdoing, that the word “lawfully” should be implied into section 1(1A) before the words “in the same household” appearing in paragraph 1(a). She submitted that the principle that no one should benefit by a criminal act was applied in Re Royse decd [1985] Ch 22 to disqualify a claimant who had been convicted of the manslaughter of the deceased from claiming under the Act for reasonable financial provision out of his estate. She referred also to Whiston v Whiston [1985] Fam 198 in which the Court of Appeal denied to a person who had knowingly contracted a bigamous marriage financial relief under the Matrimonial Causes Act 1973 since, in claiming to do so, the person was seeking to profit from her crime. Ms Hayes also referred me to the decision in Vakante v Addey & Stanhope School [2004] EWCA Civ 1065 [2004] 4AER 1056 involving an appeal from the decision of the Employment Appeal Tribunal. The latter had dismissed an appeal by an overseas national who had worked in this country without a work permit and who, following his dismissal, pursued a complaint to the employment tribunal alleging race discrimination. The claim had been dismissed on the basis that the claimant’s illegal conduct prevented him from pursuing his claim. In dismissing the appeal Mummery LJ (with whom the other two members of the court agreed) followed the test laid down in the case of sex discrimination cases in Hall v Woolstone Hall Leisure Ltd [2000] 4AER 787 and stated (at [7]) that the proper approach was:

“to consider whether the applicant’s claim arises out of or is so clearly connected or inextricably bound up or linked with the illegal conduct of the applicant that the court could not permit the applicant to recover compensation without appearing to condone that conduct.”

Mummery LJ stated (at [8]) that such an approach enabled “the tribunal to avoid arbitrary and disproportionate outcomes and to reach sensible and just decisions in most cases”.

Ms Hayes submitted that the claimant’s claim in this case was inextricably bound up or linked with the claimant having repeatedly obtained entry to this country by means of false and fraudulent statements made at the entry points of an intention only to enter as a tourist for six months whereas her case before the court was that she intended to live with the deceased as his wife, that she had lived with the deceased in London as an illegal overstayer until her return to Poland three and a half months or so before his death and that, on her own case, her intention after 18 June 1998 had been to return not as a tourist but to resume cohabitation. The decision that the claimant was an eligible applicant under section 1(1A) ought, she said, to be set aside because if it was not the court would appear to be condoning the claimant’s illegal conduct.

The reason why I consider that this argument should be rejected arises from the decision of the House of Lords in Mark v Mark [2005] UKHL 42, [2005] 3AER 912. In that case the parties, husband and wife, were Nigerian. They were frequent visitors to this country where they had a home. In the mid-1990s they lived mostly in this country. In April 1998 the wife’s leave to remain here expired and she became an illegal overstayer. Shortly afterwards the husband returned to Nigeria but the wife remained here. In 2000 she petitioned here for divorce and applied for ancillary relief. The husband contended that the English court did not have jurisdiction to entertain the petition under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 on the ground that the wife’s presence here during the twelve months up to and including the issue of the petition had been unlawful. By the time the case reached the House of Lords it was not in dispute that the wife would be habitually resident and domiciled here were it not that her presence in this country was, at the material time, unlawful. The issue therefore was the impact of that illegality on the jurisdictional requirements set out in section 5(2) which, at the material time, read as follows:

“The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (but only if) either of the parties to the marriage - (a) is domiciled in England and Wales on the date when the proceedings are begun; or (b) was habitually resident in England and Wales throughout the period of one year ending with that date.”

Upholding the decision of the Court of Appeal, the House of Lords held that residence for the purpose of section 5(2) need not be lawful residence and therefore there was no need to imply the word “lawfully” into that provision. The purpose of the 1973 Act was to provide an answer to the question of when the connection with England and Wales of the parties and their marriage was sufficiently close to make it desirable that domestic courts should have jurisdiction to dissolve the marriage. In the context of the 1973 Act the question of whether the residence was habitual was a factual one. The House of Lords also held that there was no reason in principle why a person whose presence was unlawful could not acquire a domicile of choice in England and Wales. The concept of domicile, it held, was not that of a benefit to the propositus but was a neutral rule of law for determining that system of personal law with which the individual had the appropriate connection. Recognising the connection despite the illegality of a person’s presence did not therefore offend against any general principle that a person could not be permitted to acquire a benefit from his own criminal conduct. There was no reason of public policy to deny the acquisition of a domicile of choice in such cases.

It followed therefore that the petitioner in that case was not prevented from relying on her own unlawful residence/presence in this country to confer jurisdiction on the court to dissolve her marriage and grant her ancillary relief. In the course of her speech, with which the other members of the House agreed, Baroness Hale of Richmond noted (at [36]) that there would be “other statutory provisions, in particular those conferring entitlement to some benefit from the state, where it would be proper to imply a requirement that the residence be lawful”. She also observed (at [46]) that:

“If a person has chosen to make his home in a new country for an indefinite period of time, it is appropriate that he should be connected to that country's system of law for the kind of purposes for which domicile is relevant. It would be absurd if this wife’s capacity to make a will, succession to her moveable property, and her children's right to make a claim under the Inheritance (Provision of Family and Dependants) Act 1975 against her estate were not to be governed by the law of this country.”

Ms Hayes submitted that Mark v Mark is of no application and provides no guidance since it was concerned with whether the court had jurisdiction to entertain the wife’s proceedings. Here by contrast, she said, there is no question over the existence of the court’s jurisdiction since it was not in dispute that the deceased died domiciled in this country. The question rather was whether the claimant established her eligibility to make a claim under the Act and, thus, to invoke the court’s discretion to benefit her at the expense of the deceased’s estate in exercise of the jurisdiction conferred by the Act. The claimant, she said, ought not to be heard to rely on her illegal presence here to establish her claim.

Whilst I accept that Mark v Mark was concerned with the court’s jurisdiction, I am not persuaded that the approach of the House of Lords to that question does not point the way in this case. The question here is whether during the two years immediately preceding his death the deceased and the claimant lived as husband and wife in the same household. That is a pure question of fact. It is not dependent on whether the claimant is an illegal overstayer. The purpose of the jurisdiction is to recognise the financial claims against a deceased’s estate of persons closely related to or financially dependant upon the deceased. In the case of claims by a spouse or former spouse of the deceased, there is a close affinity with the jurisdiction exercised by the court on the break-up of a marriage. See, for example, section 3(2) of the Act. It would be extraordinary if an overseas national who had lived for, say 30 years, in this country as the wife of a man resident and domiciled in this country and who, to the man’s knowledge, had originally entered this country illegally and had never regularised her presence here were disabled from advancing any claim out of his estate under the Act by virtue of her unlawful status here but could have made a claim against him if, before his death, she had successfully petitioned for divorce and made a claim for ancillary relief.

In my judgment, just as the wife's unlawful presence in this country was no bar to her ability in Mark v Mark to establish habitual residence and domicile in this country so as to ground jurisdiction in the court under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, so also was the claimant’s unlawful presence in this country no bar to her ability to invoke the court’s jurisdiction under the Act to make reasonable financial provision for her out of the deceased’s estate.

Ms Hayes also submitted that just as section 25(4) of the Act provided that for the purposes of the Act any reference to a wife or husband should be treated as including a reference to “a person who in good faith entered into a void marriage with the deceased…” the reference to a person claiming to have lived “as a husband or wife of the deceased” should similarly be required to have acted in good faith, namely believing that what he or she was doing was lawful. In the present case, she said, the claimant was not living as the deceased’s wife “in good faith” because she knew that virtually throughout the relationship she was present in this country not as a tourist but illegally. I do not accept the argument. Section 25(4) is concerned with the good faith in which the parties entered into the marriage. It has nothing to do with whether the wife or husband is entitled to reside in this county.

I can take the second and third grounds of appeal together because they are related. The second ground of appeal asserts that “on the learned Judge's findings of fact, together with the contents of the Claimant’s letter from Warsaw dated 8 July 2002, he ought to have concluded that from 18 June 2002 until the Deceased's death the Claimant was not living in the same household as the Deceased nor did they live as husband and wife immediately before his death within the meaning of sections 1(1)(ba) and 1(1A) of the … Act”. The third ground asserts that “on the learned Judge’s findings of fact he ought to have concluded that the Claimant had not established that there was a settled basis or arrangement for her maintenance, and that she was not being maintained by the Deceased immediately before his death for the purposes of section 1(1)(e) of the Act”.

It is not suggested that the claimant did not live in the same household as the deceased and as his wife, or that he did not maintain her. These two grounds of appeal raise whether he was doing so “immediately before the date when the deceased died” (as is required in the case of the section 1(1)(ba) claim) or “immediately before the death of the deceased” (as is required in the case of the section 1(1)(e) claim). Effectively the question is whether the claimant continued to live in the same household as the deceased and as his wife, and continued to be maintained by him, notwithstanding that on 18 June 2002 she went to Poland and remained there for the next fourteen weeks, only returning to this country having heard of the deceased’s accident and, by ill-fortune, arriving back only on the day of his death. She had not therefore actually been living in the same household as the deceased for over three months prior to his death. The last cash payment he made to her, capable of qualifying as “maintenance”, was on 12 August 2002, six and a half weeks before the deceased’s accident from which he died a few days later.

Ms Hayes accepted that, as the authorities make clear, “immediately before the death of the deceased”, as used in section 1(1)(e) refers to the general arrangements for maintenance subsisting at the time of death “so that if for example the deceased had been making regular payments to the support of an old friend the claim would not be defeated if those payments ceased during a terminal illness because the deceased was too ill to make them”. See Jelley v Iliffe [1981] Fam 128 at 141 (per Griffiths LJ). As Stephenson LJ made clear in that case (see [1981] Fam at 136) in considering whether a person is being maintained “immediately before the death of the deceased” it is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which has to be looked at, not the actual, perhaps fluctuating, variation of it which exists immediately before his or her death”. The judge himself referred to a passage from Re Beaumont [1980] Ch 444 at 452 where Sir Robert Megarry V-C said that “the word ‘immediately’ plainly confines the court to the basis or arrangement subsisting at the moment before death and excludes whatever previously subsisted but has ended, and the state of affairs under it”. Ms Hayes accepted that the position must be similar where the claim is under section 1(1)(ba), namely whether the settled arrangement for cohabitation (that is living as husband and wife in the same household) continues to exist up to the deceased’s death.

In Gully v Dix [2004] 1FLR 918, an appeal concerned with the application of sections 1(1A) and 1(1)(e), Ward LJ, with whom the two other members of the Court of Appeal agreed, after referring to section 1(6) of the Matrimonial Causes Act 1973 (stating that “…a husband and wife shall be treated as living apart unless they are living with each other in the same household, and references in this section to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household”) and to Santos v Santos [1972] Fam 247, said this:

“[23] …Giving the judgment of the court, Sachs LJ [Santos v Santos] observed first at 262 and then at 263:

‘…use is again made of words with a well settled matrimonial meaning - “living together”, a phrase which is simply the antithesis of living apart, and “household”, a word which essentially refers to people held together by a particular kind of tie, even if temporally separated…

…“living apart” … is a state of affairs to establish what is in the vast generality of cases arising under those heads necessary to prove something more than that the husband and wife were physically separated. For the purpose of that vast generality, it is sufficient to say that the relevant state of affairs does not exist while both parties recognise the marriage as subsisting. That involves considering attitudes of mind; and naturally the difficulty of judicially determining that attitude in a particular case may on occasions be great.’

Although the court was dealing with the converse situation, namely living apart, nevertheless I find that judgment helpful in the construction of the Inheritance (Provision for Family and Dependants) Act 1975.

[24] In my judgment, similar considerations must apply to the meaning to be given to the statute with which we are presently concerned. Thus the claimant may still have been living with the deceased in the same household as the deceased at the moment of his death even if they had been living separately at that moment in time. The relevant word is ‘household’ not ‘house’, and ‘household’ bears the same meaning given to it by Sachs LJ. Thus they will be in the same household if they are tied by their relationship. The tie of that relationship may be made manifest by various elements, not simply their living under the same roof, but the public and private acknowledgement of their mutual society, and the mutual protection and support that bind them together. In former days one would possibly say one should look at the whole consortium vitae. For present purposes it is sufficient to ask whether either has demonstrated a settled acceptance or recognition that the relationship is in truth at an end. If the circumstances show an irretrievable breakdown of the relationship, then they no longer live in the same household and the Inheritance (Provision for Family and Dependants) Act 1975 if not satisfied. If, however, the interruption is transitory, serving as a pause for reflection about the future of a relationship going through difficult times but still recognised to be subsisting, then they will be living in the same household and the claim will lie. Just as the arrangements for maintenance may fluctuate…so the steadfastness of a commitment to live together may wax and wane, but so long as it is not extinguished, it survives.”

Ms Hayes criticised that decision as having failed to refer to any analogy with the Fatal Accidents Act definition of the expression “the person was living with the deceased”. I do not accept that as a valid criticism of Gully v Dix but, even if it were, I am bound by the approach to the interpretation of section 1(1A) of the Act adopted by the Court of Appeal in that case.

Ms Hayes accepted that the fact that the claimant and the deceased were physically separated and not actually living in the same household at the time of the deceased’s death was not fatal to a claim under section 1(1)(ba) if the separation was because of a sudden illness or because of some other unexpected circumstance or was merely temporary in nature. The question in each case, she stated, is whether on the facts the settled arrangement, whether for maintenance or for cohabitation, has come to an end by the time of the deceased’s death. She submitted that the judge came to wrong conclusions on both issues and that the correct inference or conclusion to be drawn from the primary facts as found by the judge was that by the time of the deceased’s death, indeed by the time of a letter she sent to the deceased on 8 July 2002, written after she had been in Poland for about three weeks, she had ceased to live as the deceased's wife and although the deceased made £250 payments after that date these ceased when the last payment of £250 was sent to Poland on 12 August 2002 so that thereafter and certainly by the time of the deceased's death almost eight weeks later, it could not be said that the deceased was continuing to maintain her.

The terms of the 8 July letter are set out in full in paragraph 23 of the judgment. I shall not repeat them.

I do not need to come to any view on whether the judge was right to conclude that “cohabitation continued to subsist, despite the absence in Poland” since I am of the view that the judge was entitled to conclude that the settled arrangement for him to maintain the claimant continued up to his death. Plainly a relationship continued between them up to the time the deceased sent the last of the four £250 payments. The judge was quite entitled to regard these payments as being towards the claimant’s maintenance, as from paragraph 65 of the judgment, he clearly did. Moreover, it is to be noted that the four cash payments of £250 (the last of them, it appears, did not reach the claimant but there was no challenge to the judge’s findings that that payment was despatched) were sent over the space of under three weeks. They were in addition to a £2,000 payment which the deceased gave the claimant when she left for Poland on 18 June. While in Poland, when was staying in her own property at № 46. Given the judge’s finding that if she had lived in London (where it is common ground that the cost of living is very much greater than in Poland) the claimant’s every day living expenses were estimated, as at November 2003, at £220 per week, it is reasonably plain that overall payments totalling £3,000, if given for her maintenance, would have been sufficient, taking into account her other resources, to maintain the claimant at her own home in Poland for many months, and certainly much longer than the three and a half months that she was there before returning to this country in early October 2002. (The judge had found that £50 per week was the sum needed to enable the claimant to maintain herself in Poland, given her own pension and other resources.) In my view, when taken with the judge’s other findings concerning the continuing relationship between the claimant and the deceased, it was well open to him to conclude that the claimant continued to be maintained by the deceased “immediately before” his death and that the absence of any further payment between 12 August and the deceased's accident on 27 September (following which he went into hospital and, as I have mentioned, died a few days later) is not fatal to this conclusion.

What then of the judge’s conclusion, reached “if it were necessary”, that “cohabitation continued to subsist, despite her absence in Poland”? In her challenge to this conclusion Ms Hayes paid particular attention to the 8 July letter and also to a barbecue in this country attended by the deceased (and referred to by the judge at paragraph 66) at which the deceased was reported to have said that he did not know whether the claimant would be coming back. I can do no better than set out the judge’s own findings about that (at paragraph 67 to 69):

“67.

Certainly the deceased was uncertain when she would return. We know from the letter that she invited him to Poland by her letter. We also know that he never went. He had been to Poland in 1972 and simply remembered it as the unpleasant communist state that it was, and he knew that she could only lawfully come to England for six months when she came. He had made it plain that he would not marry her. His drinking habits clearly troubled her. So there is, as I say, a vast array of facts indicating that the settled pattern of cohabitation had come to an end.

68.

I have to say that I have found this question extremely difficult because there is an array of evidence suggesting that, and there is another array of evidence suggesting the opposite. What I do not have is the actual evidence of the deceased himself because that, like all else of him, has gone hence.

69.

The facts indicating that the cohabitation arrangement continued are that the claimant wrote the letter and the postcards showing great affection. It is known that the deceased did send money to her, perhaps to be shown to the Immigration authorities on her return to England. There were undoubtedly many telephone conversations between them. I pause to say that there were also many telephone conversations between the deceased and his son. Her return to Poland was immediately triggered by the nephew’s wedding and of her desire to have medical tests done by persons who would speak her own language. There is also the fact that after the death she returned to the property by appointment to collect items of hers at № 15, which she would not have done had she cleared everything out. There is a great deal of factual evidence, and there is no sure way of deciding it, as to whether her property was in part returned by the parcel sent in July, although I am inclined to think that it contained a number of presents for her; whether her listing of the missing property was an accurate statement on her part of the items that were there, or whether the Defendant is right in saying that she had removed her property. Certainly a number of clothes had been bagged up or left for her to collect and were present in the house when Mr Gruder opened the door to her on the occasion he refers to in his witness statement. It is really impossible to know precisely where the truth lies, but I am inclined to think that she had kept something at № 15 for her return.”

He then concluded in paragraph 70, that “on balance but with enormous hesitation…the cohabitation continued to subsist, despite her absence in Poland.” He later went on to reconcile that conclusion with the evidence of those who recalled the deceased’s uncertainty over whether the claimant would ever come back. He had earlier referred (at paragraph 66) to “the background of conflict between the Claimant and the Defendant and the consequent embarrassment of the deceased which caused him to play down his affection for the Claimant when speaking to others, particularly to his son”. He later returned to this theme (at paragraph 71) when he stated:

“As with many of the issues of fact in this case, I found the evidence of the witnesses of very limited help, for this reason. I consider they were all trying to do their best to assist me, but when it comes to their recollection of what the deceased said it must be remembered that the deceased himself was in the embarrassing position that I have already referred to. If I repeat it, I do not apologise, because I think it is one of the clues to an understanding of the deceased, of loving the Claimant and also wishing not to antagonise his son. It may very well be that by his words he emphasised the aspects of his difficult life that each side remembers so as to give the impression of the deceased’s attitude which they give in their witness statements.”

Although, as I have said, it is not necessary to come to any view on whether the judge was right to conclude, despite the claimant’s absence in Poland, that “cohabitation continued to subsist” I am not persuaded that the judge’s conclusion was wrong. Simply to concentrate on the claimant’s letter of 8 July 2002 which, in isolation, can be taken in parts as supportive of the judge’s conclusion and, in others, as inconsistent with it, and on the comments of the deceased’s made at the London barbecue (which was said to have taken place sometime in late August 2002) is to focus on only two aspects of the “vast array of primary facts” to which (at paragraph 66) the judge referred. I do not have the benefit that the judge had of being taken to all of the evidence, nor of having the opportunity to assess the quality of the evidence of those who appeared before the judge. If therefore it had been necessary for me to reach a conclusion on this ground of appeal, I would have rejected it on this as on the other two grounds of appeal.

It follows that the cross-appeal fails.