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 of the king, and could not proceed: ‘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. ‘ (Wall LJ) It was inappropriate to seek to rule on the jurisdictional issue.
Thorpe LJ, Dyson LJ, Wall J
Times 21-Nov-2005,  EWCA Civ 1324
Matroimonial Causes Act 1973 23
England and Wales
Cited – Mosey v Mosey and Barker 1956
An order had been made against the husband, upon the dissolution of a marriage, securing an annual sum for the maintenance of the wife and their child that was to be agreed upon or referred to the district registrar. The order envisaged contuation . .
Cited – Dipple v Dipple 1942
The court considered the abatement of an application for financial relief in divorce proceedings on the death of one party.
Held: The wife’s claim to secured provision was not a cause of action within the terms of section 1(1). The wife only . .
Cited – Sugden v Sugden CA 1957
The husband died after having had made against him an order to pay maintenance to the two children of the marriage.
Held: The order could not be enforced against his personal representatives after his death. The court explained why a claim . .
Cited – D’Este v D’Este; D(J) v D(S) FD 1973
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 . .
Cited – Cooke v Gill CCP 11-Jan-1873
What constitutes a cause of action is ‘every fact which is material to be proved to entitle the plaintiff to succeed.’ . .
Cited – Read v Brown 1888
Lord Esher defined the phrase ’cause of action’ to mean ‘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.’ . .
Cited – McMinn v McMinn 2003
A section 27 claim cannot be pursued by a surviving spouse. Black J said: ‘It is clearly established that until an ancillary relief order has been made, an ancillary relief claim is not a cause of action. This appears to be because of the . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .
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 – Maconochie v Maconochie 1916
If there was a general rule that the death of a party in a divorce case leads to the abatement of the action, then it cannot be supported. . .
Cited – Re Bramwell (Deceased) and Campbell v Tobin and Another FD 1988
The court considered the effect on an ancillary relief claim where one pary died: ‘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 . .
Cited – Ainsbury v Millington (Note) HL 1987
There had been a dispute between the parties as to a council house tenancy, but by the time it came before the House, the tenancy had ceased to exist, and the action was academic.
Held: Once the parties have settled their dispute there remains . .
Cited – Letang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
These lists may be incomplete.
Updated: 25 January 2021; Ref: scu.234689