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Home > Judgments > 2005 archive

Harb v King Fahd (DCA intervening) [2005] EWCA Civ 1324

Application by former wife for financial relief despite the former husband having died before the appeal was heard. It was ruled that an application under section 27 of the Matrimonial Causes Act does not survive the death of a spouse. Application dismissed.

Neutral Citation Number: [2005] EWCA Civ 1324

Case No: B4/2005/0072

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF THE FAMILY DIVISION

PRINCIPAL REGISTRY.

Butler-Sloss P

FD04F00040

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 09/11/2005

Before:

LORD JUSTICE THORPE

LORD JUSTICE DYSON

and

LORD JUSTICE WALL

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Between :

JANAN HARB Applicant

- and -

HIS MAJESTY KING FAHD BIN ABDUL AZIZ Respondent

-and –

THE DEPARTMENT OF CONSITUTIONAL AFFAIRS Intervener

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- - - - - - - - - - - - - - - - - - - - -

Mr J Turner QC (instructed by Messrs Burton Woolf & Turk) for the Applicant

Mr A Moylan QC & Mrs J Roberts (instructed by Messrs Howard Kennedy) for the Respondent

Hearing dates : 12th October 2005

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Judgment

LORD JUSTICE THORPE:

1. This appeal raises a pure point of law, easier to define than to decide.

2. On the 16th January 2004 Mrs Harb issued an originating application against King Fahd Bin Abdul Aziz under section 27 of the Matrimonial Causes Act 1973. The resulting stages of the proceedings have attracted a good deal of publicity. The King's preliminary challenge was on the ground of sovereign immunity. That challenge was upheld in the judgment of Dame Elizabeth Butler-Sloss P of the 15th December 2004. Permission to appeal was granted by this Court on the 26th May 2005. The appeal was fixed for hearing in the Lord Chief Justice's court on 29th November 2005.

3. However on the 1st August 2005 the King died. On the 13th September 2005 the King's solicitors wrote to this court reporting his death. The letter continued, "Accordingly, on the basis of established authority, these proceedings including the appeal to the Court of Appeal have abated." Whether or not that contention is correct in law is the issue which we must now decide.

4. The letter to this court of the 15th September from the applicant's solicitors, who had received a copy of the letter of the 13th September, correctly identifies the essential material for the resolution of the legal question namely: - Dipple v Dipple [1942] P. 64, Barder v Caluori [1988] A.C. 20, and Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. The letter also makes two additional points: first the application of the Human Rights Act 1998 and second the recent decision of this court in Bowman v Fels [2005] EWCA Civ 226. Given that the Department of Constitutional Affairs had in the interim intervened in the appeal it was suggested that this court should rule upon the sovereign immunity issue even if the applicant's claim had died with the death of the king.

5. The battle lines adopted in these two letters have not shifted. The full and skilful skeletons written by Mr Andrew Moylan QC for the respondent and by Mr James Turner QC for the applicant essentially elaborate upon the points taken in correspondence.

6. Mr Moylan has had the easier road. He has had only to identify the relevant statutory provisions and cite a clear line of authority which justifies the assertion in his instructing solicitor's letter. Mr Turner's road could fairly be described as up hill all the way.

7. To justify that contrast I will first set out the legislative provisions.

8. The essential content of section 27 of the Matrimonial Causes Act 1973 is contained in subsections 1, 3 and 6 as follows: -

"(1) Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent):-

(a) has failed to provide reasonable maintenance for the applicant,

(3) Where an application under this section is made on the ground mentioned in subsection (1)(a) above, then, in deciding-

(a) whether the respondent has failed to provide reasonable maintenance for the applicant, and

(b) what order, if any, to make under this section in favour of the applicant, the court shall have regard to all the circumstances of the case including matters mentioned in section 25(2) above…

(6) Where on an application under this section the applicant satisfies the court of any ground mentioned in subsection (1) above, the court may make any one or more of the following orders, that is to say: -

(a) an order that the respondent shall make to the applicant such periodical payments, for such term, as may be specified in the order;

(b) an order that the respondent shall secure to the applicant, to the satisfaction of the court, such periodical payments, for such term, as may be so specified;

(c) an order that the respondent shall pay to the applicant such lump sum as may be so specified;…".

9. It is to be noted that the right of application is given to "either party to a marriage" and that the right is against "the other party to the marriage". The other party to the marriage is thereafter referred to as "the respondent". Subsection (6) enables the court to make orders against "the respondent", by definition "the other party to the marriage". Thus these provisions are expressly limited to applications made during the joint lives of the parties.

10. There are two subsequent sections of the statute which expressly empower the court to make orders beyond joint lives.

11. First there is section 33, which by subsection 1 and 3 provides: -

"(1) Where on an application made under this section in relation to an order to which this section applies it appears to the court that by reason of- …

(b) the changed circumstances resulting from the death of the person so liable, …

(3) An application under this section may be made by the person liable to make payments under an order to which this section applies or his or her personal representatives and may be made against the person entitled to payments under the order or her or his personal representatives."

12. Section 36 provides for the alteration of maintenance agreements made during joint lives after the death of one party. The essential provision appears from the following abbreviated citation: -

"(1) Where a maintenance agreement within the meaning of section 34 above provides for the continuation of payments under the agreement after the death of one of the parties and that party dies domiciled in England and Wales, the surviving party or the personal representatives of the deceased party may, subject to subsections (2) and (3) below, apply to the High Court or a county court for an order under section 35 above.

(2) An application under this section shall not, except with the permission of the High Court or county court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out."

13. These express provisions reinforce the conclusion that section 27 provides a remedy only exercisable during joint lives. Of course if during joint lives the applicant's spouse obtains a secured provision order against the respondent spouse then the order, duly obtained during joint lives, continues to benefit one spouse after the death of the other. It would be a long stride to contend that the applicant had the right to apply for or to continue an application for secured provision after the death of the other spouse.

14. That the death of a respondent during the dependency of an application for orders under section 23 and or 24 might cause injustice to the applicant was recognised and safeguarded by the Inheritance (Provision for Family and Dependants) Act 1975. Section 14 provides: -

"(1) Where, within twelve months from the date on which a decree of divorce or nullity of marriage has been made absolute or a decree of judicial separation has been granted, a party to the marriage dies and-

(a) an application for a financial provision order under section 23 of the Matrimonial Causes Act 1973 or a property adjustment order under section 24 of that Act has not been made by the other party to that marriage, or

(b) such an application has been made but the proceedings thereon have not been determined at the time of the death of the deceased,

then if an application for an order under section 2 of this Act is made by that other party, the court shall, notwithstanding anything in section 1 or section 3 of this Act, have power, if it thinks it just to do so, to treat that party for the purposes of that application as if the decree of divorce or nullity of marriage had not been made absolute or the decree of judicial separation had not been granted, as the case may be."

15. No such safeguard was necessary in the instance of an application under section 27 terminated prior to judgment by the death of the respondent spouse since the applicant spouse can obtain relief by her application as widow under the Inheritance Act. Of course that ordinary procedural transfer is not open to this applicant since the respondent was not domiciled in England and Wales. Reference to the Inheritance Act simply reinforces the conclusion that the legislation has given careful attention to the rights of those spouses, former spouses and widows who are the victims of wilful neglect to maintain. It may be that this case demonstrates a lacuna, given the considerable volume of litigated disputes between spouses and former spouses where the respondent holds a foreign domicile. If there is such a lacuna it is clearly only Parliament that can address it.

16. This construction of section 27 of the Matrimonial Causes Act 1973 is consistent with a long line of authority construing previous or related statutory provisions stretching back into the 19th Century. I do not intend to cite or review those authorities partly because Mr Turner concedes that they are all against him and partly because they were reviewed with customary clarity in the speech of Lord Brandon in Barder v Caluori. Of the eleven considered by Lord Brandon four were particularly emphasised by Mr Moylan namely Dipple v Dipple; Mosey v Mosey and Barker [1956] P 26; Sugden v Sugden [1957] P 120; D'Este v D'Este [1973] Fam 55. There can be no doubt that Lord Brandon cited and analysed this well established line of authority with approval. He concluded his review with this important paragraph: -

"I would state the conclusions to which I think that these authorities lead in this way. First, there is no general rule that, where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it. The passage in the judgment of Shearman J. in Maconochie v. Maconochie [1916] P. 326, 328, in which he stated that such a general rule existed, cannot be supported. Secondly, it is unhelpful, in cases of the kind under discussion, to refer to abatement at all. The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken. Thirdly, the answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third. The first matter is the nature of the further proceedings sought to be taken. The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. The third matter is the applicability of section 1(1) of the Act of 1934."

17. Applying that statement of principle to the present appeal it is clear that the real question is whether following the death of the King further proceedings can be taken. The answer to the question depends first on the nature of the further proceedings. The nature of the further proceedings is clear; the applicant seeks to argue that the King was not entitled to sovereign immunity and, if successful, to seek to prove her entitlement to relief under section 27. I then come to the second matter, the true construction of the relevant statutory provisions. It is at that point that the respondent succeeds. I am in no doubt that on a true construction of section 27 Parliament intended that the right to pursue an application to judgment did not extend beyond joint lives.

18. Mr Moylan drew attention to and relied upon two first instance decisions since the decision in Barder v Caluori. They are: Re: Bramwell (Deceased) and Campbell v Tobin and Another [1988] 2FLR 263 and McMinn v McMinn [2003] 2FLR 823.

Both these decisions add to the pre-existing line of authorities and are therefore supportive of Mr Moylan's principal submission that section 27 claims cannot be issued or pursued to judgment after the death of the respondent spouse.

19. I have already recorded that Mr Turner conceded that the authorities were against him. However he contended that he was entitled to succeed in reliance on the very paragraph from the speech of Lord Brandon that I have cited above. Mr Turner's emphasis was upon the applicability of section 1(1) of the Act of 1934. However in my judgment this case does not fall within the category to which all three of the matters identified by Lord Brandon applies. It fails on "the true construction of the relevant statutory provision". Mr Turner in his submissions dwelt more upon injustice than the true construction of section 27. He urged that to deny the applicant further proceedings would be to perpetrate obvious injustice. What is before us is a pure point of law that does not admit of any inquiry as to where justice lies. Furthermore we have no material that would enable us to take even a preliminary view on the justice of the case. The fundamental facts that the applicant would have to prove in order to cross the threshold to the exercise of a judicial discretion are all in issue.

20. Nevertheless, in deference to Mr Turner's argument I express a view on section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. That subsection provides:

"(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims made under section 189 of the Supreme Court of Judicature (Consolidation) Act, 1925, for damages on the ground of adultery."

21. In Letang v Cooper [1965] 1QB 232 Diplock LJ at 242 defined a cause of action thus:

"a cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person."

22. That definition echoed definitions given in the previous century by Lord Esher MR in Cooke v Gill [1973] L.R. 8C. P. 107 and later in Read v Brown [1988] 22 QBD 128.

23. In Dipple v Dipple Hodson J held that a wife's claim to secured provision was not a cause of action within the terms of section 1(1) of the 1934 Act. The wife's right arose under section 190 of the Supreme Court of Judicature (Consolidation) Act 1925 which provided:

"the court may, if it things fit, on any decree for divorce or nullity of marriage, order that the husband shall, to the satisfaction of the court, secure to the wife such … annual sum of money for any term, not exceeding her life…".

24. Of that provision Hodson J stated: -

"Sect. 190 of the Judicature Act, 1925, provides that the court may, if it thinks fit, order the husband to secure to the wife such a sum of money as the court may deem to be reasonable. The wife thus has merely the right to ask the court to exercise discretionary powers in her favour. This seems to me to be an essentially different thing from her having an enforceable claim against her husband."

25. The point reached the Court of Appeal in Sugden v Sugden. The judgment of Denning LJ contains the most complete explanation of why a Matrimonial Causes Act claim is not a cause of action for the purposes of the 1934 Act. He said at 134: -

"The judge was much influenced by section 1 of the Law Reform (Miscellaneous Provisions) Act, 1934, which he thought applied so as to make the sums for maintenance continue after the father's death. I do not agree with that view. The section only applies to "causes of action" which subsist against the deceased at the time of his death. The legislature had particularly in mind causes of action in tort which used to fall with the death of either party under the old common law maxim actio personalis moritur cum persona. "Causes of action" in the section means, I think, rights which can be enforced – or liabilities which can be redressed – by legal proceedings in the Queen's courts. These now survive against the estate of the deceased person. "Causes of action" are not, however, confined to rights enforceable by action, strictly so called – that is, by action at law or in equity. They extend also to rights enforceable by proceedings in the Divorce Court, provided that they really are rights and not mere hopes or contingencies. They include, for instance, a sum payable for costs under an order of the Divorce Court, or a right to a secured provision under an order already made against a man before his death: see Hyde v. Hyde and Mosey v. Mosey and Barker.

It must be noticed, however, that the section only applies to causes of action "subsisting against" the deceased on his death. This means that the right or liability must have accrued due at the time of his death.

In an action in the Queen's Bench there is usually no difficulty in determining when the right or liability accrued due: but there is more difficulty in proceedings in the Divorce Court. In that 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. This view of proceedings in the Divorce Court is supported by the decision of my brother Hodson L.J (then Hodson J.) in Dipple v. Dipple, where he pointed out that all that the wife had was the hope that the court would in its discretion order a secured provision. She had no right to it at all until the order was actually made, and hence she had no cause of action at his death. While I entirely agree with that decision, I do not think that the fact that a cause of action is discretionary automatically takes it out of the Act. An injunction is a discretionary remedy, but, if a cause of action for an injunction subsisted at the death, I should have thought it would survive against the personal representatives. The only thing which takes a case out of the Act is the absence of an enforceable right at the time of death.

I would add that, in divorce proceedings, in order that the cause of action should subsist at the death, the right under the order must itself have accrued at the time of death. Thus a cause of action subsists against a husband for arrears of maintenance due at his death, but not for later payments."

26. There can be no doubt that this view was endorsed by Lord Brandon in the speech from which I have cited. So much is clear from his re-statement of the ratio of the decisions Dipple v Dipple and D'Este v D'Este. Lord Brandon's speech was delivered sixteen years after the introduction of the current statutory regime for financial provision consolidated in the Matrimonial Causes Act 1973.

27. Although, therefore in my judgment Mr Turner's reliance upon section 1(1) of the 1934 Act is plainly vain I confess to some misgivings in perpetuating a view expressed by Hodson J nearly fifty years ago on a statutory provision now eighty years distant. The vast majority of financial claims are currently determined under section 23 and 24 of the Matrimonial Causes Act 1973. Section 27 is very rarely invoked. But under whichever section the court adjudicates its first task is to establish the basics. In relation to section 23 and 24 applications, has there been a decree of divorce? Has the applicant a subsisting right of application which has not been exhausted or previously dismissed? In the case of section 27 applications, is the applicant married to the respondent and has she suffered financial neglect? Once the foundations to the right of application are established then, and only then, does the court exercise a discretion expressed in the conventional statutory language thus, "may make any one or more of the following orders." But that discretion is confined by a statutory duty to apply specific statutory criteria in search of, as originally enacted, a statutory objective. These characteristics seem to me to be more common to, rather than distinguishing from, the essential characteristics of a claim for damages for personal injuries sustained as a result of the negligence of a tortfeasor.

28. There are two remaining points which I can deal with shortly. Neither Article 6 nor Article 8 of the European Convention on Human Rights avails the applicant. Neither article creates substantive financial rights and cannot extend her civil rights as defined by the Matrimonial Causes Act 1973.

29. Mr Turner's submission that his client was entitled to proceed with her appeal in any event was quite unpersuasive to me since it would be pointless to sanction an academic appeal on sovereign immunity if Mrs Harb has no rights or claims in this jurisdiction. The point raised by the pending appeal is no doubt of interest both to the legal and to the wider community. But it is not so sufficiently exceptional as to approach the standards set by this court in Bowman v Fels. The argument that Mrs Harb should have an opportunity to recover costs already incurred in the appeal is not impressive. To end the appeal here and now protects her from the risk of having to pay the respondent's costs on the dismissal of the appeal.

30. In conclusion I record that the issue raised by the letters to which I have already referred has been expedited to enable the parties and the court to know where they stand well before the fixture. I also record that the intervener did not wish to make any submissions on this issue. The order that results from our judgments will be settled in due course if not agreed.

LORD JUSTICE DYSON:

31. The issue that arises on this appeal can be simply stated. Where an application is made for an order under section 27(6) of the Matrimonial Causes Act 1973 ("the 1973 Act") by one party to a marriage against the other party to the marriage ("the respondent"), and the respondent dies before an order has been made, does the application come to an end on the death of the respondent, or is it a "cause of action" within the meaning of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 ("the 1934 Act") which survives against the respondent's estate?

32. The approach that should be adopted to resolve this question was clearly enunciated by Lord Brandon in Barder v Caluori [1988] 1 AC 20, 37D-F in the passage cited by Thorpe LJ at para 16 above.

33. There is no doubt as to the nature of the further proceedings that the applicant is seeking to pursue. She wishes to obtain an order under section 27(6) of the MCA. The next question is whether, on the true construction of section 27, she can continue with the proceedings against the respondent's estate. If, properly construed, section 27 precludes the continuation of the proceedings, that is an end of the matter. If, however, section 27 does not have that effect, there remains the question whether the application is in respect of a "cause of action" within the meaning of section 1(1) of the 1934 Act: if it is not, then the application ceases on the death of the respondent.

The true construction of section 27 of the 1973 Act

34. An application under section 27(1) may be made by "either party to the marriage for an order under this section for an order that the other party to the marriage (in this section referred to as the respondent…." Section 27(6) specifies the orders that the court can make: they are orders as to what "the respondent" shall do. If it had been intended that, in the event of the respondent's death, orders under section 27(6) could be made against the estate of the other party to the marriage, Parliament could have so provided. But it did not do so. Mr James Turner QC responds that there was no need to make any express reference to the respondent's estate, since the survival of the application is ensured by section 1(1) of the 1934 Act. At this stage of the argument, I shall assume in Mr Turner's favour that an application under section 27 of the 1973 Act is a cause of action within the meaning of section 1(1) of the 1934 Act. I agree that, if section 27 is looked at in isolation, it can be argued that the definition of "the respondent" as "the other party to the marriage" is not, of itself, sufficient to disapply section 1(1) of the 1934 Act (if it would otherwise apply). The other party to the marriage is a "person" within the meaning of section 1(1), and if an application under section 27 is a cause of action against him or her, it is difficult to see why upon death it does not survive against his or her estate pursuant to section 1(1). But section 27 cannot be considered in isolation.

35. First, the 1973 Act was a consolidating act. It should be interpreted against the background of previous statutes which had been consistently interpreted as meaning that applications for, or in relation to, financial provision by one party to a marriage against the other ceased when one of them died. Thus in Thomson v Thomson [1896] P 263, a husband died after obtaining a decree absolute against his wife. It was held that the court had no jurisdiction to entertain an application by his personal representatives to vary a post-nuptial settlement. The reason was that, on the true construction of section 5 of the Matrimonial Causes Act 1859, the power to vary such settlements was only available when there was some living person, the husband or one or more children of the marriage who could benefit from its exercise. The statute provided that the court could exercise the power "for the benefit of the children of the marriage or of their respective parents…." Both Sir F H Jeune, P and the court of appeal construed the section as applying for the benefit of living persons only.

36. In D'Este v D'Este [1973] Fam 55, a husband obtained a decree absolute against his wife after their matrimonial home had earlier been conveyed to them jointly. He remarried and applied to the court for variation of the post-nuptial settlement. He died before the application was heard, and his second wife sought to carry on the application in her capacity as his personal representative. It was held by Ormrod J that the court had no jurisdiction to deal with the application, because on the true construction of section 4 of the Matrimonial Proceedings Act 1970, an application for variation could only be made and proceeded with by one spouse against another while both remained alive. So far as material, section 4 gave power to the court to vary "for the benefit of the parties to the marriage….any ante-nuptial or post-nuptial settlement…made on the parties to the marriage…" At page 59B, Ormrod J said:

"In my judgment, the real answer to this application is this, that the whole of the matrimonial causes legislation, right back to 1857, is essentially a personal jurisdiction arising between parties to the marriage or the children of the marriage. The death of one or other of the parties to the litigation has nothing whatever to do with the old common law rule which was abrogated by the Act of 1934. The fact that these applications abate by death derives, in my judgment, from the legislation which created the rights, if they are rightly called "rights" and from no other source. If that is correct, then it is not necessary to examine very closely whether or not the administratrix in this case has something which could be called, by any stretch of imagination, a cause of action."

37. This passage is of considerable significance. Mr Turner does not suggest that Ormrod J was wrong to say that matrimonial causes legislation had been consistently interpreted since 1857 as meaning that applications between parties to a marriage abated upon the death of one of them. No case has been cited to this court before (or since) D'Este was decided in which an application for, or in relation to, financial relief by one party to a marriage did not abate on the death of one of them.

38. It is worth referring to Barder again at this point. The matrimonial home was owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the wife committed suicide. The husband applied for leave to appeal. One question that arose was whether the court had jurisdiction to entertain the application notwithstanding that the wife had died. The House of Lords held that the court did have such jurisdiction. In giving the principal opinion, Lord Brandon reviewed a number of the authorities, including D'Este. After concluding his review, he said at p 37D: "I would state the conclusions to which I think these authorities lead in this way." There then followed the passage which Thorpe LJ cited at para 16 above. I do not believe that Lord Brandon would have expressed himself in these terms if he had reservations about the earlier authorities, still less if he disagreed with the broad summary made by Ormrod J in the passage that I have just cited.

39. That Ormrod J's exposition represented the law is clear from the following passage at para 60 of The Law Commission report on family property: family provision on death 1974 (Law Com No 61):

"In this report we distinguish between the standard of family provision for a surviving spouse (other than a judicially separated spouse) and that for a former spouse or a judicially separated spouse. One of our reasons for doing so is that under the present law the former spouse or the judicially separated spouse has the opportunity during the deceased's lifetime to obtain a share of the family assets in matrimonial proceedings. There will, however, be cases where, even under the present law, the former spouse or the judicially separated spouse has no such opportunity because the death of the other spouse has supervened before the court has made an order for financial provision in the matrimonial proceedings. We consider that special provision should be made for such a spouse who, without fault on her part, is placed in this situation."

40. It is true that this passage refers to the position of former and judicially separated spouses. But, for present purposes, there is clearly no material distinction to be drawn between applications made under section 23 and those made under section 27 of the 1973 Act.

41. In my view, therefore, section 27 must be construed against the background of the earlier legislation and how that earlier legislation had been interpreted and understood. It is significant that, despite these clear and unequivocal statements of the effect of death on applications for, or in relation to, financial relief, Parliament decided in 1973 to enact a consolidating act. It is plain that Parliament did not intend to change the law. It is understandable why this should have been so. It must have been thought that the interests of surviving spouses were adequately served by the inheritance legislation, although the Law Commission report shows that this was not entirely so, and as Thorpe LJ suggests at para 15 above, a lacuna may still remain.

42. Mr Andrew Moylan submits that further support for this interpretation of section 27 is to be found in the fact that there are express provisions in the 1973 Act which define the circumstances in which the court has jurisdiction in the event of the death of one of the parties. He submits that these provisions both provide for and define the scope of that jurisdiction. Section 31 deals with the variation, discharge and enforcement of certain orders for financial relief. Subsection (6) provides that where the person liable to make payments under a secured periodical payments order has died, an application relating to that order may be made by the person entitled to payments under the order "or by the personal representatives of the deceased person". Section 33 deals with orders for repayment in certain cases of sums paid under certain orders. Subsection (3) provides that an application may be made by the person liable to make payments made under an order to which the section applies "or his or her personal representatives and may be made against the person entitled to payments under the order or his or her personal representatives". Finally, section 36 confers jurisdiction to alter a maintenance agreement after the death of one of the parties at the suit of the surviving party or the personal representatives of the deceased party.

43. In my judgment, Mr Moylan's submissions based on these express provisions do not bear the weight that he seeks to place on them. Each of the provisions deals with applications that may be made after the death of one of the parties to a marriage. Of course, such applications can only be made, if at all, by or against the personal representatives of the deceased. It goes without saying that, in the absence of express statutory provision permitting them, such applications could not be made. Ex hypothesi, they could not have been made by or against the deceased during his or her lifetime. The existence of these statutory provisions does not necessarily imply that Parliament intended that applications made by one party to the marriage against the other before death could not be continued by or against his or her personal representatives after death.

44. Nevertheless, I think that the existence of these express statutory provisions does provide some support for the conclusion that I have already expressed. They show that Parliament applied its mind to the consequences of the death of one of the parties to a marriage, and made certain limited provisions to deal with them. If it had been intended that all or any applications for, or in relation to, financial relief made before death by a party to the marriage should continue for or against the estate of the deceased person, one would have expected that to be stated explicitly in a statute which contains some express provisions in relation to death.

45. But, principally for the reasons expressed earlier, I would hold that, upon the true construction of section 27 of the 1973 Act, an application for an order under subsection (6) abates on the death of a party to the marriage.

Section 1(1) of the 1934 Act

46. It follows that it is not strictly necessary to consider whether such an application is a cause of action within the meaning of section 1(1) of the 1934 Act. But since we heard full argument on the point and in case what I have said in relation to the construction of section 27 is wrong, I propose to deal with the cause of action point. Section 1(1) is set out by Thorpe LJ at para 20 above.

47. Lord Esher MR said in Read v Brown (1888) 22 QBD 128 at 131 that a cause of action is "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court". A similar definition was give by Diplock LJ in Letang v Cooper [1965] 1 QB 232 at 242H where he said: "a cause of action is simply a factual situation the existence of which entitled one person to obtain from the court a remedy against another person."

48. It has been held on a number of occasions that applications for financial relief in matrimonial proceedings are not applications in respect of a cause of action. In Dipple v Dipple a husband died after his wife had obtained a decree absolute against him. It was held that the court had no jurisdiction to entertain an application by the wife against the husband's personal representatives for secured maintenance. Hodson J said that, on the true construction of section 190(1) of the Supreme Court of Judicature (Consolidation) Act 1925, which gave the court power to order secured maintenance for a wife, the right to apply for such an order was not a cause of action within the meaning of section 1(1) of the 1934 Act. Section 190(1) provided that "the court may, if it thinks fit, on any decree for divorce or nullity of marriage, order that the husband shall…." Hodson J said that this provision merely gave the wife:

"…the right to ask the court to exercise discretionary powers in her favour. This seems to me to be an essentially different thing from her having an enforceable claim against the husband."

49. Dipple has subsequently been applied in a number of first instance cases. By 1987, Sheldon J was able to say in Re Bramwell (deceased) [1988] 2 FLR 263 at 267B:

"In these circumstances, in my judgment, it is clear – as has been recognized and acknowledged without recorded dissent for over 40 years – that in matrimonial proceedings a claim for financial provision neither gives rise to nor becomes a 'cause of action' within s. 1(1) of the 1934 Act unless an order has been made in respect of it before the death of the deceased: until such an order has been made, therefore, in remains a mere hope or contingency which survives neither against nor for the benefit of the deceased's estate."

50. In Sugden v Sugden [1957] P 120, a husband died after having previously had made against him an order to pay maintenance to the two children of the marriage. It was held by the court of appeal that the order could not be enforced against his personal representatives after his death. It seems to me that the ratio of the decision was based on the true meaning and effect of the order. As Denning LJ said at 134, if upon its true construction the order could not be enforced against the personal representatives, "it is the end of the case". But Denning LJ did go on to consider in detail whether the application asserted a cause of action within the meaning of section 1(1). He examined Dipple and said that he agreed with it "entirely". He said that causes of action are rights which can be enforced in the courts "provided that they really are rights and not mere hopes or contingencies". They include a sum payable for costs under a court order, or a right to a secured provision under an order already made against a man before his death. My Lord has already cited extensively from the judgment of Denning LJ at para 25 above.

51. Like my Lord, I have some misgivings about treating an application for financial relief as being other than a cause of action within the meaning of section 1(1). I confess to having some difficulty in understanding why, if the 1973 Act does not preclude an application for financial relief after the death of a party to the marriage, such an application is prevented from being a cause of action because the applicant does not have an enforceable right at the time of death. In Sugden, it was accepted that the fact that the relief sought involves the exercise of discretion by the court is not sufficient to prevent it from being a cause of action. If, as Denning LJ thought, a claim for an injunction made against a person before his or her death can survive against the personal representatives by operation of section 1(1), then why should a claim for financial relief not also survive? It seems to me that the person seeking an injunction has no more or less of an enforceable right than a former spouse seeking financial relief. Expressing the point slightly differently, I do not see why a claim for financial relief under the 1973 Act is any more a "hope or contingency" than a claim for damages in tort or for breach of contract. In each case, I would say that there is no enforceable right until the claim has been established to the satisfaction of the court.

52. But it has been consistently held in cases since Dipple that a claim by one party to the a marriage against the other for, or in relation to, financial relief is not a cause of action within the meaning of section 1(1). Although the observations of the court of appeal in Sugden were in my view obiter dicta, nevertheless they were carefully considered and comprehensive. Furthermore, in his tour d'horizon in Barder, Lord Brandon made the remark that I have quoted at para 38 above. He clearly had no reservations about what had been said in the authorities to which he referred on the section 1(1) point. In these circumstances, even if the section 1(1) issue had not been moot in the present case, I would not have felt able to accede to Mr Turner's submission that we should depart from such a clearly established line of authority.

53. For these reasons, I would hold that this application ceased upon the death of the respondent.

Postscript

54. I should add that I agree that this conclusion does not result in any violation of the applicant's rights under article 6 or 8 of the ECHR. Indeed, although Mr Turner asserts otherwise in his skeleton argument, I did not understand him to persist in his ECHR points in his oral submissions.

55. I also agree that the appeal on the sovereign immunity issue has become academic and should not be permitted to continue. The general rule is that courts decide disputes between the parties before them, and "do not pronounce on abstract questions of law when there is no dispute to be resolved": Ainsbury v Millington (Note) [1987] 1 WLR 379, 381B. As Mr Moylan points out, this is not a case involving a public authority as to a question of public law: such as might attract the exercise of the discretion (to be exercised with caution) discussed in R v Home Secretary, ex p Salem [1999] 1 AC 450, 456G – 457B. The sovereign immunity issue is one of public interest and is important. But in my judgment that is not enough to bring this appeal within the Salem principle. Mr Turner relies on Bowman v Fels. That was a wholly exceptional case which concerned an issue of public law of great importance which was causing great difficulties in solicitors' offices and barristers' chambers and in the orderly conduct of litigation throughout the country. This court decided to entertain the appeal, although the underlying proceedings had been settled. A relevant factor was that both parties to the appeal were content that the court should rule on the point, and the interveners were very anxious for a ruling. Those exceptional circumstances were very far from the present case.

LORD JUSTICE WALL:

56. I have had the advantage of reading in draft the judgments of Thorpe and Dyson LJJ. I respectfully agree with their four principal conclusions, namely; (1) that the court's jurisdiction to entertain Mrs. Harb's claim under section 27 of the Matrimonial Causes Act 1973 (MCA 1973) against the King has been ousted by the latter's death; (2) that her claim under MCA 1973 section 27 is not a cause of action under section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 (the 1934 Act) which survives against the King's estate; (3) that neither ECHR Article 6 nor 8 is engaged on the facts of this case; and (4) that Mrs. Harb's appeal against the President's decision given on 5 October 2004 that the King was entitled to sovereign immunity is now academic and falls to be dismissed.

57. In my judgment, the issue before this court is a short and straightforward point of statutory construction. MCA 1973 section 27 (the full terms of which Thorpe LJ has set out in paragraph 8 of his judgment) entitles "either party to a marriage" to apply to the court for identified financial relief against the other on the ground that the other party to the marriage has failed to provide "reasonable maintenance" for the applicant. A widow, in my judgment, is not a party to a marriage within MCA 1973, section 27. She is a party to a former marriage which has been brought to an end by the death of her husband. For MCA 1973 section 27 to apply there must be a subsisting marriage. Mrs. Harb's alleged marriage to the King no longer subsists, and the death of the King deprives the court of jurisdiction to grant Mrs. Harb any relief under MCA 1973 section 27. That, to my mind, is the short and simple answer to the issue before us.

58. It is, in my judgment, now firmly established that a claim for financial provision between living spouses or former spouses is not a cause of action under section 1 of the 1934 Act which survives the death of either spouse. Unlike rights of action at common law, the rights enjoyed by spouses or former spouses to make claims for financial relief against each other are exclusively derived from statute, and wholly dependent for their prosecution on the status of the applicant as spouse, or former spouse whose marriage has been dissolved by judicial decree and who has not re-married. There is, in my judgment, no such thing as a right of action at common law enabling one spouse or former spouse to claim financial relief against the other.

59. That the right to make a claim for financial relief in matrimonial proceedings is exclusively dependent upon the status of the applicant is also demonstrated by the fact that whereas an unmarried heterosexual couple living together as man and wife may well create a situation in which one is dependent upon the other, the dependent party has no common law right to financial support from the other during the latter's lifetime. Many think this creates an injustice, but it will require legislation to correct it, in the same way that it has required the Civil Partnership Act 2004 to extend such rights to same sex couples.

60. Parliament has, accordingly, developed an extensive but exclusive statutory code whereby spouses and former spouses can make applications for financial provision and property adjustment orders against each other. This jurisdiction is divided, broadly speaking, into three parts, each depending upon the status of the applicant spouse. These are: (1) where the marriage has not been either dissolved or annulled by judicial decree and both parties are alive; (2) where the marriage has been dissolved or annulled by judicial decree, both parties are alive and the applicant for relief has not remarried; and (3) where one spouse has died (whether before or after the dissolution of the marriage by judicial decree), and the surviving spouse or former spouse who has not remarried wishes to make a claim against the estate of the deceased former spouse.

61. The fact that in the situations identified in (1) and (2) in the previous paragraph the court only has jurisdiction to make orders under MCA 1973 where both parties to the application are alive, is well established in the case law. It has been how the terms of the statute and its predecessors have been consistently interpreted in the line of authority to which both Thorpe and Dyson LJJ advert, and which was approved by Lord Brandon in his speech in Barder v Caluori [1988] AC 20. In my judgment, the point was stated with characteristic accuracy, clarity and trenchancy by Ormrod LJ in the passage from his judgment in D'Este v D'Este [1973] Fam 55, 59B which Dyson LJ has cited at paragraph 36 of his judgment, and which I need not repeat.

62. Two other provisions of MCA 1973 underline the point. Section 28(1)(a) requires that the term of a periodical payments order "shall be so defined as not to extend beyond the death of either of the parties to the marriage or, where the order is made on or after the grant of a decree of divorce…. the remarriage of the party in whose favour the order is made"; and MCA 1973 section 28(3) imposes re-marriage as a bar to any form of relief. Thus if a divorced former spouse (say Mrs. A) remarries and becomes Mrs. B, she loses her right to make a claim for ancillary relief against Mr. A, although case law has established that she can continue a claim for capital commenced prior to her remarriage.

63. It is clear that there are areas (secured provision and variation of maintenance agreements after the death of a party) in which the provision made during the parties' joint lives can both continue and be varied after the death of the respondent. However, it is equally clear that the original provision has to be made whilst both parties are alive.

64. Finally, the need for the respondent to be alive for any claim for financial relief under MCA 1973 (including, of course, MCA 1973 section 27) to be effective, is further demonstrated by the criteria identified under section 25(2), to which the court is required to have particular regard in deciding whether to exercise its powers and if so in what manner. Two of these (MCA section 22(2)(a) and (b)) refer respectively in terms to resources, and financial needs "which each of the parties to the marriage has or is likely to have in the foreseeable future".

65. The third limb of the statutory code is provided by the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). For reasons which are readily apparent, Parliament has chosen to limit claims under the 1975 Act to cases in which the deceased has died domiciled in England and Wales. The 1975 Act also widens the category of applicants to include dependents (see section 1(1)(e)) who would plainly not have had any claim against the deceased during his lifetime. It is, however, noteworthy, that section 1(1)(b) of the 1975 Act bars a claim against the deceased's estate by a former wife who has remarried.

66. Equally important for present purposes is section 14 of the 1975 Act. This provides that where a marriage has been dissolved, but an applicant's claim for ancillary relief in the `divorce proceedings has not been determined when the other party to the marriage dies, the court may disregard the existence of the decree of divorce, and treat the applicant for provision under the 1975 Act as a widow / widower. Section 14 enables Mr. Moylan, for the King, to make the telling point that if the applicant's claims did not abate on death, this provision would be unnecessary.

67. Even from this brief and incomplete consideration of the statutory provisions, it is apparent that Parliament has constructed a careful statutory code enabling spouses and former spouses to make financial claims the one against the other. This code has been re-visited by the legislature on a number of occasions. The opportunity for reform has thus been present, and as Dyson LJ points out, Parliament has chosen, in MCA 1973, to pass a consolidating statute. Insofar as reforms to the code have been required (for example, to deal with pensions) they have been added.

68. Allowing an alleged former spouse in Mrs. Harb's position to continue her claim under section 27 MCA 1973 would, in my judgment, be a major reform, and involves questions of policy which are plainly for Parliament. Furthermore, whether or not Mrs. Harb has a meritorious claim (as to which I cannot and do not express an opinion) it is not difficult to imagine situations in which the continued prosecution of a claim for ancillary relief after the death of the respondent could work injustice. Not only, therefore, as Thorpe LJ suggests, are we dealing with a pure matter of law (to which considerations of individual justice are immaterial); in my judgment, the ramifications of what the appellant in the instant case is inviting us to do are fundamental and wide-ranging.

69. I have less anxiety than Thorpe and Dyson LJJ in following the well established line of authority from Dipple v Dipple [1942] P 42 onwards, which has consistently held that claims for financial relief between spouses and between living former spouses are not causes of action within section 1 of the 1934 Act. I have three reasons for this. The first is my agreement with the analysis of the matrimonial causes legislation undertaken by Ormrod J in D'Este v D'Este. The second is that to treat unresolved applications for matrimonial financial relief as causes of action under the 1934 Act which could be continued after the death of the deceased would run wholly counter to the statutory scheme, and could cause substantial difficulties in practice. The third is that Parliament has provided a remedy, albeit limited to the situation in which the deceased dies domiciled in England and Wales, in the 1975 Act.

70. I appreciate that the second and third of the reasons set out in the previous paragraph are largely pragmatic and would not prevent a financial claim in matrimonial proceedings being a cause of action under the 1934 Act if it otherwise satisfied the criteria set out in Read v Brown (1888) 22 QBD 128 at 131 and Letang v Cooper [1965] 1 QB 232 at 242H Unlike Thorpe LJ, however, I regard the fact that the matrimonial jurisdiction's analysis of the 1934 Act has remained unaltered throughout the Act's existence as evidence both of a wholly consistent approach, and a recognition of the unique nature of financial claims between spouses and former spouses. These considerations reinforce my view that if this perspective is to be altered, it is for Parliament to do so.

71. I do not need to say anything about the applicability of ECHR: Thorpe LJ disposes of that argument in paragraph 28 of his judgment, and there is nothing else which needs to be said on the point. I also entirely agree with Dyson LJ's postscript, and in particular with his analysis of Bowman v Fels.

72. For these reasons, which, of course, largely echo those given by Thorpe and Dyson LJJ, I would adopt the course they propose.