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 under the Matrimonial Causes Act is not as such a cause or action under the 1934 Act, (Lord Denning LJ): ‘The judge was much influenced by section 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 that view. The 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 moritur cum persona. ‘Causes of action’ in the 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 and Mosey v. Mosey and Barker.
It must be noticed, however, that the 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.
In an action in the Queen’s Bench there is usually no difficulty 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. This view of proceedings in the Divorce Court is supported by the decision of my brother Hodson L.J (then Hodson J.) in Dipple v. Dipple, 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. While 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 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.
I would add that, in divorce proceedings, 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.’
Judges:
Denning LJ
Citations:
[1957] P 120
Statutes:
Law Reform (Miscellaneous Provisions) Act 1934 1
Jurisdiction:
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 . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 23 June 2022; Ref: scu.235891