Harb v King Fahd Bin Abdul Aziz & Anor

An unresolved application for financial relief under section 27 of the Matrimonial Causes Act 1973 ends when either party to the marriage dies. The jurisdiction requires a subsisting marriage and does not permit an order against the deceased respondent’s estate.

Such an application is not a cause of action surviving under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. Before an order is made, the applicant has no enforceable financial right against the respondent. Articles 6 and 8 cannot enlarge the substantive rights conferred by the statutory scheme.

An appeal rendered academic by the respondent’s death should not continue merely because it raises an important issue. Departure from the ordinary rule requires exceptional circumstances, especially where no live dispute remains.

The applicant began proceedings against the King under section 27 of the Matrimonial Causes Act 1973, alleging failure to provide reasonable maintenance. The President of the Family Division upheld the King’s preliminary claim to sovereign immunity, and the applicant obtained permission to appeal.

The King died before the appeal was heard. His solicitors contended that the proceedings had consequently ended. The Court of Appeal determined whether the section 27 application could continue against his estate, either under the matrimonial legislation itself or as a surviving cause of action under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. It also considered whether the now academic sovereign-immunity appeal should proceed.

1. Appeal dismissed. The court unanimously held that the section 27 application ended upon the King’s death. The sovereign-immunity appeal had therefore become academic and could not continue.
2. Section 27 of the Matrimonial Causes Act 1973 authorises one party to a marriage to seek orders against the other party. On its true construction, the provision requires both parties to remain alive until judgment. Wall LJ emphasised that a widow is a party to a former marriage, not a party to a subsisting marriage for section 27 purposes. The wider statutory scheme contains specific and limited provisions governing financial matters after death. Those provisions, the history of the consolidating legislation and the established authorities confirmed that Parliament did not intend unresolved section 27 applications to continue against an estate.
3. The proper inquiry following a party’s death is not governed by a general doctrine of abatement. Following Barder v Caluori [1988] 1 AC 20, the court must consider the nature of the proposed further proceedings, the true construction of the governing provision or order and, where relevant, section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. Here the construction of section 27 was decisive.
4. In any event, the section 27 application was not a surviving cause of action under section 1(1) of the 1934 Act. The established matrimonial authorities treated an unresolved claim for financial provision as a hope or contingency rather than an enforceable right. Thorpe and Dyson LJJ expressed reservations about that reasoning, but regarded the line of authority as too firmly established to depart from. Wall LJ accepted it without those reservations. Any reform was for Parliament.
5. Articles 6 and 8 of the Convention created no substantive financial entitlement and could not extend the applicant’s statutory civil rights. Nor did the public importance of the sovereign-immunity issue justify deciding an abstract question. The exceptional circumstances present in Bowman v Fels [2005] EWCA Civ 226 were absent.

1. Court of Appeal (Civil Division): The court held that the section 27 proceedings ceased upon the respondent’s death and dismissed the sovereign-immunity appeal as academic: [2005] EWCA Civ 1324.
2. High Court, Family Division: The President upheld the respondent’s preliminary challenge based on sovereign immunity. No citation for that decision is stated in the judgment.