The husband had obtained a decree absolute of divorce against his wife. The matrimonial home had 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.
Held: The court had no jurisdiction to deal with the application. Under section 4 of the 1970 Act 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’
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.’
Ormrod J
[1973] Fam 55, [1973] 1 All ER 349
Matrimonial Proceedings Act 1970 4
England and Wales
Cited by:
Cited – Barder v Barder; Barder v Caluori HL 1988
Later Event no ground to appeal from consent order
The matrimonial home had been 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 . .
Cited – Harb v King Fahd Bin Abdul Aziz and Another CA 9-Nov-2005
The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
Distinguished – A v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. . .
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
These lists may be incomplete.
Updated: 08 July 2021; Ref: scu.235890
