What happens if one party passes away during a divorce proceeding: Part II

Introduction

Part I took as its starting point, the following proposition:

“If a spouse dies halfway through the divorce proceedings, the divorce proceedings will be abated…”

This proposition has been accepted and applied in England since 1957. It is the product of a decision of the English Court of Appeal: Sugden v Sugden [1957] P 120.

In Hong Kong, Sugden has also been followed and applied – most significantly and recently by the Hong Kong Court of Appeal, in Chan Siu Man v Lam Jenny & Ors [2013] HKCU 2949.

However, this state of affairs may not continue for much longer. Recent developments in English law herald a prospect of imminent and radical change for both jurisdictions, as discussed below.

The Sugden position

In Sugden, the court held that the intervening death of one spouse meant that the surviving spouse was no longer able to pursue a matrimonial claim for ancillary relief.

In such circumstances, as explained in Part I, the surviving spouse is left with recourse to:

• testamentary bequests if any (unlikely – as pointed out in Part 1, once there is an impending divorce, any Will should be [re]drafted to exclude the spouse);
  
  
• their entitlement to half the estate under the rules of intestacy (if, notwithstanding the impending divorce, the deceased had neglected to make any Will); or
  
  
• a dependency claim under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481.

Whereas the first two options will present themselves by default, the third option entails a decision, forced upon the surviving spouse, to embark on litigation that is often speculative and expensive.

Death is not always the end

Faced with such invidious options, a surviving spouse may well ask: does death invariably lead to abatement in every case?

In Barder v Caluori [1988] AC 20, Lord Brandon held that

“…there is no general rule that where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it…”¹

For Lord Brandon, “the real question” was

“…whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken…the answer to that question…depends on the nature of the further proceedings sought to be taken…[and] the true construction of the relevant statutory provisions [and/or] of a particular order made under them…”²

Nothing ends a marriage like death

Two cases in which matrimonial proceedings were abated by death nevertheless serve to illustrate Lord Brandon’s point.

In Stanhope v Stanhope (1886) 11 PD 103, the terms of a family trust provided that if H died, his widow would become entitled to certain interests under the trust. W having been unfaithful, H petitioned for divorce on the grounds of W’s adultery and got as far as obtaining a decree nisi. Decree absolute seemed a foregone conclusion but just before it could be pronounced, H died, enabling W to snatch widowhood (and her trust fund) from the jaws of divorce.

Not surprisingly perhaps, H’s personal representatives sought to deprive W of her windfall by pursuing the proceedings to a decree absolute. The English Court of Appeal held that this was not possible. As Bowen LJ observed:

“A man can no more be divorced after his death than he can after his death be married or sentenced to death.”³

The same rationale is discernible in another decision of the English Court of Appeal two centuries later, in Harb v King Fahd bin Abdul Aziz [2006] 1 WLR 578.

Mrs. Harb had claimed non-divorce maintenance under section 27 of the Matrimonial Causes Act 1973. King Fahd died before the claim could be heard. The court held that the claim did not survive His Majesty’s death. As Wall LJ explained,

“She is a party to a former marriage which has been brought to an end by the death of her husband. For section 27 to apply there must be a subsisting marriage. Mrs. Harb’s alleged marriage to the King no longer subsists, and the death of the King deprives the court of jurisdiction to grant Mrs. Harb any relief under section 27.”⁴

In each of these cases, the subsistence of the marriage was a necessary qualification for the remedy sought; and clearly, a marriage can subsist only if both spouses remain alive.

Cause of action or mere hope?

A third consideration, acknowledged by Lord Brandon⁵ to arise in some cases, is whether the claim being pursued in the divorce proceedings is a ‘cause of action’ which, by virtue of applicable legislation, survives the death of one or both spouses.

The applicable legislation is Section 1(1) of the English LRMPA⁶, which in Hong Kong is enacted as section 20(1) of LARCO⁷.

Both sections provide that

“…on the death of any person…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...”

and the question is whether a claim is properly a “cause of action” or only “a mere hope or contingency”. A cause of action will survive death; a mere hope or contingency will not.

Hope without cause

In Sugden, Denning LJ held that a claim for maintenance was a mere hope or contingency rather than a cause of action. It therefore did not survive death:

“…rights enforceable by proceedings in the Divorce Court [are also causes of action] provided that they really are rights and not mere hopes or contingencies…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.”⁸

Cause for hope

Until now, Sugden and Lord Denning’s categorisation of ancillary relief claims as mere hopes or contingencies have stood as leading and binding authority, with the result that intervening deaths invariably lead to the abandonment of matrimonial claims and a reluctant recourse to speculative dependency claims.

However, the Sugden orthodoxy may soon be rejected as heresy. In the recent English case of Hasan v Ul-Hasan [2021] EWHC 1793, Mostyn J set out comprehensive reasons why, in his judgment, Sugden should no longer be followed.

Within an analysis ranging from an examination of the Austenesque claim for ‘criminal conversation’ (“the underlying themes were, of course, male honour, female purity and revenge”) to a section intriguingly entitled “Do both parties need to be alive?”, his Lordship included the following explanation why a claim for ancillary relief should be a cause of action:

“I do not doubt that back in 1957, a claim for ancillary relief was regarded as a mere [hope or contingency], the satisfaction of which depended on the court benevolently deciding to exercise discretion in the applicant’s favour. But the law has substantially developed since then…The modern law of ancillary relief directs the court to the concept of sharing as its first port of call…[and] the so-called unfettered discretion is now highly fettered. …I would suggest that such a claim is more solid, less conjectural and less speculative than a civil claim for damages for personal injury.”⁹

Accepting that he (and the Court of Appeal) would nevertheless be bound by Sugden, his Lordship was constrained to find against Madam Hasan’s claim for maintenance but certified her case fit for a leapfrog appeal to the UK Supreme Court. On 30 March 2022, the UK Supreme Court granted leave for that appeal to be heard. A hearing date is awaited.

If Sugden is overturned by the UK Supreme Court on grounds including those canvassed by Mostyn J, ancillary relief claims will thenceforth be capable of being pursued after and despite the death of one spouse – in England and, thereby, perhaps also in Hong Kong.

Dependency claims

Where would that leave dependency claims made under the Inheritance (Provision for Family and Dependants) Ordinance Cap 481 (the “Inheritance Ordinance”), where the applicant dies before judgment?

The Inheritance Ordinance largely mirrors the English Inheritance (Provision for Family Dependants) Act 1975 (“the 1975 Act”).

According to the English case of Whytte v Ticehurst [1986] Fam 64, dependency claims under the 1975 Act share the same legal foundation as ancillary relief claims and as such, only consist of mere hopes or contingencies¹⁰. Therefore, following Sugden, an applicant under the 1975 Act has no cause of action that can survive the death of the applicant and be enforced by the applicant’s personal representatives.

Both Sugden and Whytte were cited and applied by the Hong Kong Court of Appeal in Chan Siu Man v Lam Jenny & Ors [2014] 1 HKLRD 529, to hold that a dependency claim under the Inheritance Ordinance was only a mere hope or contingency¹¹; and on this ground, Madam Chan’s application for financial support could not be continued by her daughter (as personal representative) following Madam Chan’s untimely death.

This position is unlikely to change even if Sugden is overturned:

• firstly, unlike ancillary relief claims, dependency claims have not evolved to become any more solid, less conjectural or less speculative than before. They remain very much subject to a wide judicial discretion to do justice between the parties having regard to the facts specified in the legislation. By this measure, they continue to occupy the realm of hope and contingency rather than the status of cause of action;
• secondly and irrespective of the criteria which may distinguish a mere hope from a cause of action, the Hong Kong Court of Appeal also held in Chan Siu Man that purely on a proper construction of the statutory language, the statute clearly envisages an applicant who is still living at the time of the hearing¹²;
  
  
• therefore, regardless of the dichotomy between mere hope and a cause of action and unless a different statutory interpretation prevails, a dependency claim will invariably abate upon the death of the applicant because of “the nature of the proceedings and the true construction of the relevant statutory provisions”¹³.

What does all this mean for divorcing spouses?

Crucially for those who are currently embarked on matrimonial proceedings, the emergence of Madam Hasan’s appeal to the UK Supreme Court means that the intervening death of one spouse (or even both spouses) should no longer automatically trigger any concession or conclusion that the matrimonial proceedings are abated. That they are not abated is now as clearly arguable in Hong Kong as it is in England. Therefore, pending final determination of the issue at the highest appellate level, it would be prudent for a spouse to preserve the ability to pursue both options: a matrimonial claim in the event that Sugden is overturned; a dependency claim¹⁴ in the event that Sugden is upheld. Moreover, for any such case currently pending in Hong Kong, the issue seems equally appropriate for consideration by the Hong Kong Court of Final Appeal – regardless of the progress or outcome of Madam Hasan’s appeal in UK.

1. At page 37
2. At page 37
3. At page 108
4. At paragraph 57
5. Barder v Caluori [1988] AC 20, at page 37
6. Law Reform (Miscellaneous Provisions) Act 1934
7. Law Amendment and Reform (Consolidation) Ordinance, Cap 23
8. At page 135
9. At paragraph 49
10. At pp 69-70
11. At paragraph 54
12. At paragraphs 40-45
13. As envisaged by Lord Brandon in Barder and illustrated by Stanhope and Harb above
14. Even if that will still invariably abate upon the death of the applicant, there is, ex hypothesi, no other choice.