Adult children: (no?) right to maintenance
Adult children: (no?) right to maintenance
In civil law or Shari’a law jurisdictions, children (amongst others) are afforded a minimum right to their parents’ assets. English law refers to the rights of children in its sister jurisdictions by the blanket label "forced heirship", a concept alien to the Anglo-Saxon common law. As a result, in English law, questions relating to a child’s right to assets of their married parents are usually only considered in the context of succession.
The question of an adult child’s right to assets during their married parents’ lifetime is one which (domestically at least) English lawyers had never suspected might exist.
It is therefore surprising that precisely this question arose for consideration by Sir James Munby, President of the Family Court (Court), in FS v JS and RS [2020] EWFC 63.
The case arose out of particularly unfortunate facts. The Court and counsel both noted no precedent existed. The tone of the judgment indicates the Court does not expect to see similar cases repeated. Despite the unusual context, the argument and the position taken by the Court are fascinating when viewed from the angle of succession law, especially perhaps from the perspective of a jurisdiction which does not grant fixed inheritance rights to children. The Court declined to allow a right of appeal and it is assumed that a higher court would take the same line.
Background: difficult circumstances
A 41-year old "child" (the Claimant) suffers with difficulties and mental health disabilities. The President assumed (for the purposes of deciding the legal points raised) that the Claimant was “vulnerable”, within the meaning of the relevant legislative provisions, despite noting that he was a qualified solicitor, with a first degree in Modern History, holding a Masters in Taxation and with other academic and professional achievements in prospect.
The Claimant fell out with his married parents (the Defendants), who live in Dubai. Relationships deteriorated, such that, although the Defendants previously allowed their son to live in a flat in central London (owned by them) and paid the utility bills, they had significantly reduced that financial support: it is worth noting that they had not eliminated it entirely.
In what must have been a spectacular breakdown in the family dynamics, the Claimant sued the Defendants. Broadly, his argument was that the Defendants had “nurtured his dependency on them for the last 20 years or so”; accordingly, they had forfeited the right to withdraw the support.
The Claimant was unsuccessful: the Court rejected each of the Claimant’s three arguments in strong terms. The judge also expressed critical views (not aimed at the professionals involved) on the conduct of the case.
Lifetime: no right for a child of married parents
The Claimant’s first argument is of particular interest as it relied on the 1973 legislation governing divorce and financial arrangements. Certain provisions in this legislation exist relating to maintenance orders for children made in the parents’ divorce proceedings. Broadly put, the children have corresponding rights to bring an action to vary those maintenance orders. In a novel argument, the Court was asked to interpret these provisions sufficiently widely to allow a child of parents who are still married to also bring such claims.
The President flatly rejected this proposition, saying: “there is no free-standing jurisdiction under [the legislation] for a child to bring a claim for maintenance against a party to a subsisting marriage.”
The Court went on to note (in what might have been an attempt to provide reassurance to parents) that: “[t]he law – that is, the common law and equity – never entertained a cause of action or claim between a financially dependent adult child and his parents, and this whether the child was illegitimate or legitimate, nor was there any process by which a legitimate adult child could have made such a claim”.
The Law Commission’s 1982 report explains this position from a policy perspective: a child’s right to bring proceedings in relation to maintenance orders only exists “if the parents’ relationship has broken down”.
Interestingly, the reference to the Claimant’s educational achievements was more than an implicit criticism of the Claimant. Instead, it related closely with the Claimant’s second argument, which warrants some further comment. Provisions of the 1989 legislation, on which the Claimant also attempted to rely, involve divorcing parties supporting further education up to a certain level. The Court’s reference to the Claimant’s education served to emphasise that the Claimant had passed such a level. (The Court did note that there was an open debate as to whether divorcing parents would be required to pay for professional qualifications.)
In short, the proverbial floodgates were firmly shut to children of married parents claiming financial support, at least during the parents’ lifetime together. But the fact there is now precedent on this issue should give pause for thought.
Succession: Claimant delayed but not defeated
As noted, the Claimant was defeated. In a jurisdiction without forced heirship, following such expensive and acrimonious litigation, it might be reasonable to assume the Defendants may entirely write their son out of their English will. (There is no suggestion this is the case.) This then might be expected to be the end of the matter but is interesting to speculate on a possible return match some time in the future.
The Inheritance (Provision for Family and Dependents) Act 1975 may prolong the story. In a jurisdiction which gives "testamentary freedom" (the right to choose those who benefit under your will) a “1975 Act claim” is the closest approximation to forced heirship. Simply put, it allows various dependants, including a child of the deceased, to apply to a court for reasonable financial provision. The 1975 legislation sets the dependency bar high for those who are not spouses and is appropriately vague as to the meaning of “financial provision”: without going into detail, it could almost be described in terms of compensation for loss of support (which is less potent than a forced heirship claim). The perspectives arising from this legislation are as follows.
On the one hand, the Supreme Court in Ilott v Mitson [2017] UKSC 17 confirmed what the Court of Appeal in that case had seemed to undermine: that adult children only succeed in 1975 Act claims with difficulty. In Ilott, an estranged non-dependant daughter (who was admittedly not well off) secured £50,000 from her mother’s estate (in total worth £486,000). The daughter appealed, asking for more. Whilst the Court of Appeal agreed, the Supreme Court overturned the increase and re-instated the original award. The remainder went to three animal charities. This gives little hope to the Claimant in FS v JS and RS.
On the other hand, the facts of FS v JS and RS might well constitute a launchpad for further litigation by the Claimant, on that future date on which the Defendants pass away, since it appears he may well qualify for dependency (even after what he complains he has lost).
The question of whether the Claimant would be successful in a claim under the 1975 Act, hypothetical as it may appear, shows that certain iconic distinctions (England’s testamentary freedom against civil/Shari’a law’s forced heirship) are not always clear, and even in England, a child’s right to their parents’ assets can be a multi-layered question.
Points for practice
No parent wants to believe their relationship with their children will break down. Removing money from the equation can certainly help preserve relationships. In relevant circumstances, a planned approach to providing and indeed withdrawing financial support to children (minor or otherwise) should be considered in advance of, and separately to, succession planning.
