Nafisa Hasan v Mahmud Ul-Hasan (Deceased)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 02 July 2021 |
| Neutral Citation | [2021] EWHC 1791 (Fam) |
| Court | Family Division |
| Docket Number | Case No: ZC17F00548 |
[2021] EWHC 1791 (Fam)
Mr Justice Mostyn
Case No: ZC17F00548
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Brent Molyneux QC (instructed by Dawson Cornwell) for the Applicant
Richard Tambling (instructed by Aramas Law) for the Respondents
Hearing dates: 21 June 2021
Approved Judgment
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published
The parties married in Pakistan in 1981. They separated in 2006, and the husband obtained a divorce in Pakistan in 2012. During the course of their long marriage the wife says that very significant sums were accumulated.
The wife was given leave to bring these proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) in August 2017. There have been several interlocutory hearings since that date, principally about the husband's disclosure. However, on 18 January 2021, the husband died at the age of 81. The wife is now aged 74.
The core question is whether the unadjudicated claim by the wife under Part III survives the death of the husband and can be continued against his estate.
Mr Molyneux QC argues that the authorities under Part II of the Matrimonial Causes Act 1973 (“Part II”), as well as those under the Inheritance (Provision for Family and Dependants) Act 1975, on this subject do not bind me as they relate to different statutes. The question has never before been considered under Part III; it is, he says, a blank canvas.
I do not agree that I am not bound by the Part II authorities. I agree with Mr Tambling that the Part II jurisprudence is clearly applicable to this Part III application. Section 17 of the 1984 Act imports all the powers under ss.23 and 24 of the 1973 Act. Section 18(3) requires the court to exercise those powers in accordance with the terms of s.25 of the 1973 Act. In such circumstances it would be the height of artifice to suggest that, for the purposes of the decision I have to make, the exercise is not identical under the two statutes. Therefore, the Part II jurisprudence is clearly applicable in this case, and inasmuch as it emanates from the Court of Appeal or the House of Lords (and is not obiter dicta), is binding on me.
That jurisprudence unambiguously states that a financial claim made during marriage or following divorce expires with the death of the respondent. In my judgment, this principle applies equally whether the claim proceeds under Part II following a domestic divorce or under Part III following an overseas divorce.
I turn to the authorities.
In Sugden v Sugden [1957] P 120 the husband had been ordered to pay maintenance to the children of the family at the rate of £300 per annum until the age of 21. He died when the children were aged 18 and 14. There were no arrears at the time of his death. The wife sought to make his estate liable to continue the payments until the children were 21. She argued that s.1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 applied so as to make the maintenance continue after the death of the husband. At that time s.1(1) provided:
‘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 section 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 claim under the Supreme Court of Judicature (Consolidation) Act, 1925, s. 189, for damages on the grounds of adultery.’
The Court of Appeal ruled that his estate was not so liable.
Denning LJ held at 134–135:
‘Karminski J was much influenced by s 1(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 this view. The sub-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 moriturcum persona. “Causes of action” in the sub-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 [1948] 1 All ER 3621 and ( Mosey v Mosey & Barker [1955] 2 All ER 391). It must be noticed, however, that the sub-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. There is no difficulty in an ordinary action 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. 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. This view of proceedings in the Divorce Court is supported by the decision of Hodson J in ( Dipple v Dipple [1942] 1 All ER 234) 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. Whilst 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 that 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.’ (Emphasis added).
The essential reasoning is found in the passages I have highlighted. Denning LJ was of the view that there is no right to maintenance. Rather, a claimant has merely a personal right to approach the court in the hope that the discretion will be exercised in her favour. A right to maintenance will only arise when an order has been made. The benefit of that order will only accrue in respect of arrears under it – future payments will not be recoverable. The right to seek maintenance from the court is not a cause of action covered by s.1 of the 1934 Act. It expires with the death of the respondent.
This reasoning was followed in D'Este v D'Este [1973] Fam 55. There, the matrimonial home had been conveyed to the husband and the wife during the marriage jointly on trust for sale. They were later divorced. The husband remarried and applied to the court for variation of the post-nuptial settlement constituted by the purchase of the matrimonial home. He died before the application was heard, and his second wife sought to carry on the application in her capacity as his personal representative. Ormrod J held that the court had no jurisdiction to deal with the application, because on the true construction of s.4 of the Matrimonial Proceedings Act 1970 (now s.24(1)(c) of the Matrimonial Causes Act 1973), an application for variation of the settlement could only be made and proceeded with by one spouse against another while both remained alive. 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 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.”
I move on to Barder v Barder (Calouri intervening) [1988] AC 20. The facts are well known. A consent order was made by a county court registrar whereby the husband was to transfer to the wife his interest in the former matrimonial home was made in February 1985. The following month the wife killed herself and the children. The county court judge granted the husband leave to appeal out of time, allowed the appeal and set aside the consent order. Thus, the husband's half share in the home was restored to...
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