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Janan Harb and His Majesty King Fahd Bin Abdul Aziz and The Dept. Of Constitutional Affairs [2005] EWCA Civ 1324

This case confirms that where an application is made for an order under section 27(6) of the Matrimonial Causes Act 1973 by one party to a marriage against the other party to the marriage, and the respondent dies before an order has been made, that application comes to an end on the death of the respondent.

Janan Harb and His Majesty King Fahd Bin Abdul Aziz and The Dept. Of Constitutional Affairs [2005] EWCA Civ 1324

Court of Appeal: Thorpe LJ, Dyson LJ, Wall LJ (11 November 2005)

Summary
This case confirms that where an application is made for an order under section 27(6) of the Matrimonial Causes Act 1973 by one party to a marriage against the other party to the marriage, and the respondent dies before an order has been made, that application comes to an end on the death of the respondent.

Background
Mrs Harb issued an application against King Fahd Bin Abdul Aziz under section 27 Matrimonial Causes Act 1973. The King's preliminary challenge, on the grounds of sovereign immunity, was upheld. Permission to appeal was granted but the King died before the appeal date. The question before the court was whether, following the death of the King, further proceedings could be taken.

Judgment
The case of Barder v Caluori [1988] AC 20 states that when considering whether further proceedings can be taken where one of the parties to a divorce suit has died, two or potentially three matters should be considered:

In answer to the first question, quite simply these proceedings concerned whether Mrs Harb could prove her entitlement to relief under section 27.

The true construction of Section 27 1973 Act
In relation to the second question it was found that the respondent succeeded. The Judges agreed that 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. Thorpe LJ highlighted that section 27(6) enables the court to make orders against "the respondent" defined as "the other party to the marriage". These provisions are expressly limited to applications made during the joint lives of the parties. There are two subsequent sections of the statute which expressly empower the court to make orders beyond joint lives; section 33 and section 36. The existence of these express provisions reinforces the conclusion that section 27 provides a remedy only exercisable during joint lives. Further, Parliament has recognised and provided a safeguard against the potential injustice where a respondent dies during the dependency of an application under section 23 or 24 of the MCA. Such a safeguard being unnecessary in relation to section 27 as the applicant could claim as a widow under the Inheritance Act. This was not available in this case as the respondent was not domiciled in England and Wales. Therefore, the judgment states that a lacuna may still exist in this respect.

Section 1(1) of the 1934 Act
On the basis that this case failed on the true construction of the relevant statutory provision there was no need to consider whether it is a "cause of action" within the meaning of section 1(1) of the Act of 1934. However, Dyson LJ stated that it had 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".

This conclusion does not violate the Applicant's rights under either Articles 6 or 8 of the ECHR.

The appeal on the sovereign immunity issue was therefore academic and under Ainsbury v Millington (Note) [1987] 1 WLR 379 it should not be permitted to continue. The Judges concluded that this was not a case to come within the ambit of Bowman v Fels [2005] EWCA Civ 226.

Read the full text of the judgment here