Introduction
The Court of Appeal’s recent decision in Kanabar v Kanabar [2026] EWCA Civ 582 determined that where party had died after issuing an appeal, but where no person was willing to become a personal representative to pursue the appeal on behalf of the estate, the appeal should be dismissed pursuant to FPR rule 30.10. This case provides a convenient opportunity to review the law and practice governing the situation where a party to divorce and financial remedy proceedings dies.
The legal framework remains as stated by Lord Brandon in the leading case of Barder v Calouri [1988] AC 20, namely, “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. …The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken. …[T]he answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third. The first matter is the nature of the further proceedings sought to be taken. The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. The third matter is the applicability of section 1(1) of the Act of 1934.”
Therefore, whether any particular financial remedy or related proceedings can continue following the death of a party will depend on the detailed circumstances and will turn on the interpretation of the relevant statute or statutory instrument. Some of the more common situations where such issues may arise are considered below.
Substantive Financial Remedy applications
If a party dies before a final financial remedy order is made, the application for a substantive order cannot continue either against a deceased’s estate, or for the estate’s benefit. This was confirmed relatively recently by the Supreme Court in Unger v Ul-Hasan [2023] UKSC 22. Here a wife sought provision under Part III of the Matrimonial and Family Proceedings Act 1984 following an overseas divorce, but the respondent died three weeks before the final hearing. Mostyn J took the view that the proper interpretation of s1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 meant that the application could continue despite the death of the respondent, but that he was bound by a Court of Appeal authority to the contrary, namely Sugden v Sugden [1957] P 120. He therefore dismissed the application but granted permission for a ‘leapfrog’ appeal direct to the Supreme Court.
The Supreme Court dismissed the appeal and reaffirmed that the proper approach was to consider whether, under the true construction of the statutory power under which the provision was sought the particular application was capable of continuing following the death of a party, before considering whether the 1934 Act applied. It then went on to consider whether under the correct principles of statutory interpretation, the provision sought under Part III of the 1984 Act was capable of continuing after the death of a party.
In the judgment of Lord Stephens with which Lord Hodge, Lord Hamble and Lord Burrows agreed, he applied both textual and contextual analysis of s12(1) the 1984 Act which provides that an application can be made where ‘a marriage has been dissolved … by means of judicial or other proceedings in an overseas country, … either party to the marriage may apply to the court … for financial relief.’ It determined that requiring a marriage to be dissolved by means of judicial or other proceedings did not anticipate an application after death of a party. And that this Act and the Matrimonial Causes Act 1973 to which it relates were both enacted in a context where the same or similar wording in earlier legislation had been interpreted by the Courts as continuing only where both parties to the marriage remained alive, for example in Thomson v Thomson [1896 P 263], Hinde v Hinde [1953] 1 WLR 175 and D’Este v D’Este [1973] Fam 55. It also relied upon the wording of s.16 of the 1984 Act which describes the relationship the parties ‘have’ with the potential jurisdictions rather than ‘had’ which also indicated that the claim was to be brought by or against a living person.
Unger v Ul-Hasan turned on the interpretation of the 1984 Act but the Supreme Court also considered the 1973 Act and confirmed that the ability to make a claim under that Act by ‘either party to marriage’ meant the parties personally and not their respective estates. This was important as it “maintains the interplay between the 1973 Act and the Inheritance (Provision for Family and Dependents) Act 1975.” The 1975 Act specifically included former spouses who have not remarried as potential applicants for provision from the deceased’s estate under s1(1)(b) and provides in s14 that if the deceased died within a year of a divorce and no final financial remedy order has been made the former spouse should be treated as a subsisting spouse for the purpose of the 1975 Act claim. None of this would have been necessary if the financial remedy claim had been intended to persist against an estate after death. Lord Leggatt’s concurring judgement particularly relied on this interplay but also emphasised the potential for unfairness under statutory regime particularly where, as is now the case, a claimant has “prima facie entitlement to an equal share of the financial fruits of the marriage partnerships [which] derives from the parties past relationship and not their current situation.” He continued, “The rationale for a sharing award remains applicable even if either or both of the parities dies before a financial order has been made.” Nevertheless, the Supreme Court was unanimous that any change to the current interplay of the 1973, 1975 and 1984 Acts should be brought about by Parliament alone.
Therefore, where a party dies before a financial remedy final order has been made the substantive financial remedy case cannot continue. In those circumstances, the parties respective financial positions are determined by reference to their existing legal and beneficial ownership of property and assets, the acquisition of any interest by operation of property law such as the principle of survivorship where applicable, the acquisition of any benefits by reason of the death under contracts or trusts such as a widow’s pension and any benefits to which the surviving party remains entitled under the deceased’s will or intestacy. If that does not provide adequately for the surviving spouse, they may make a claim against the deceased’s estate under the 1975 Act.
Of course, even where financial remedy orders are made in the usual way certain orders cannot be made to last beyond the death of a party – particularly orders for unsecured periodical payments. The longest period for which such orders can be made is the joint lives of both parties pursuant to s.28(1)(a) of the 1973 Act. Similarly, pension attachment orders under s.25B also lapse upon the death of the paying party. Conversely, pension lump sums payable pursuant to the rarely used s.25C of the 1973 Act only come into effect following the death of the paying party. Secured periodical payments orders survive the death of the payer but not of the payee, pursuant to s.28(1)(b).
Enforcement of Financial Remedy Orders
A financial remedy order, once made, can be enforced by or against the estate of the deceased party. This was confirmed in Barder itself where Lord Brandon said, “It was common ground that the wife’s mother, as her personal representative, was entitled to enforce the registrar’s order against the husband”. Lord Brandon also cited, with approval, the case of Mosey v Mosey and Barker [1956] P 26. In the earlier case an order was made that the husband should secure a specified annual sum against a property to be agreed or in default of agreement determined by the district registrar. The husband died before the property to be used as security had been agreed or decided. The court held that it had jurisdiction to entertain an application by the wife against the estate to enforce the order.
The courts have ongoing jurisdiction to enforce arears under an order for periodical payments or secured periodical payments that had accrued at the time of death, as was accepted by all parties in both Sugden and Hinde. Jurisdiction also persists where an order has been made and delivered to the parties but not sealed, as was determined in McMinn v McMinn (Ancillary Relief: Death of a party to proceedings) [2002] EWHC 1194 (Fam).
However, enforcement of most elements of a financial remedy order requires a final decree of divorce or nullity of marriage to have been made by the time of death. Otherwise the substantive provision becomes unenforceable, as the following orders under the 1973 Act do not take effect until final order of divorce has been made: orders for financial provision for a spouse pursuant to s23(5), a property adjustment order pursuant to s24(3), an order for sale pursuant to s24A(3) and a pension sharing order pursuant to s24B(2).
Appeals and set aside applications
Barder firmly established that the death of a party shortly after a final financial remedy hearing can be of itself grounds for appeal, or now a set aside application. Barder is the tragic case where shortly after a final order was made making provision for the wife and children, the wife unlawfully killed the children and took her own life. At the end of a long legal contest between the husband and the wife’s mother as administrator of the wife’s estate the House of Lords confirmed that the court had jurisdiction to hear the husband’s appeal and on the facts of the case allowed it on the basis that the supervening event vitiated the basis for the award and varied the provision made. This case is frequently relied upon, and there is now a wide-ranging jurisprudence on what does, or does not, comprise a ‘Barder event’.
Barder authoritatively disapproved earlier decisions suggesting that a suit simply abated upon the death of a party, such that no person could take any further steps in any context. It instead provided the test for whether proceedings can continue following the death, as set out in paragraph 2 above.
However, jurisdiction in Barder was founded upon the right of appeal contained in the Matrimonial Causes Rules 1977 r124(1) together with the County Court Rules 1981 Ord 13 r4(1) and (2). None of these rules remain in force following the advent of the 2010 Financial Proceedings Rules. There was then an apparent lacuna in the procedural provision for such cases as explored by my colleague Zoe Saunders in her 2011 article “FPR 2010: In Defence of Barder” [2011] Fam Law 1356.
Fortunately, in 2013 s.31F was introduced into the 1984 Act and in 2016 FPR rule 9.9A and PD9A were introduced in the Family Procedure Rules. The former clarifies that the family court can vary, suspend, rescind or revive any order made by it, including the power to vary an order with effect from when it was originally made. The latter provides the procedure for a set aside application where no error of the court is alleged, as is appropriate for a supervening event. The equivalent provision for the High Court is s17(2) of the Senior Courts Act 1981. Nevertheless, it would appear that jurisdiction to seek permission to appeal out of time under FPR 30.7 remains an alternative route, particularly where an error of the court is alleged.
Appeals commenced on grounds unrelated to the death of a party can also continue following the death of a party. Lord Brandon stated in Barder, “The purpose of the statutory right of appeal is to enable decisions of a county court which are unjust to be set aside or varied by the Court of Appeal. The fulfilment of that purpose is not made any the less necessary or desirable by the deal of one of the parties to the cause in which the decision was made.” Further, in Richardson v Richardson [2011] EWCA Civ 79 an appeal was brought following the wife’s unexpected death some 6 weeks after the final order. The appeal was brought on the basis of two alleged ‘Barder events’, first the death of the wife and second that an insurance policy that both parties had assumed would be valid was voided by the insurance company such that there was an unexpected liability of £2m. The Court of Appeal rejected the appeal based on the wife’s death as the matrimonial assets had been divided on a sharing basis but allowed the appeal on the avoidance of the policy as a vitiating event.
Nevertheless, where the successful outcome of an appeal would lead to a situation where no substantive order could be made due to the death, any appeal would be dismissed. This was the decision in Harb v King Fahd Bin Abdul Aziz [2005] EWCA Civ 1324 where Thorpe LJ stated, “it would be pointless to sanction an academic appeal on sovereign immunity if Mrs Harb has no rights or claims in this jurisdiction.”
In Kanabar the Court of Appeal confirmed that for an appeal to continue after the death of a party it is essential for there to be a proper party to pursue that appeal. In that case the wife obtained from the District Judge a substantive order that included the transfer to herself of a property owned in the legal name of the husband but which he argued was beneficially owned by his father. The husband appealed to the Circuit Judge but died prior to the hearing of the appeal. Neither his second wife (who was invited to attend the appeal hearing and did so) nor any other member of the husband’s family had taken out letters of administration to the husband’s estate by the time of that appeal, nor were apparently willing to do so. Nevertheless, the Circuit Judge heard and granted the appeal. He then remitted the case back to the District Judge, rather than substituting his own substantive decision, despite seemingly being aware that the wife would be unable to pursue her claim due to the death. Unsurprisingly, she appealed to the Court of Appeal which determined that as there was no party willing and able to take out letters of letters of administration by the time of the first appeal, that appeal should have been struck out pursuant to FPR 30.10 as the lack of such a party was a ‘compelling reason’ to do so.
The reasoning for the decision as set out in the judgement of Baker LJ was as follows. Barder itself indicated that for an appeal to continue after death some other party must be substituted. Lord Brandon stated, “Where an appeal is brought or continued after the death of one of the parties to a cause, procedural steps have to be taken to substitute another party for the party who has died. Provision for the taking of such steps is made by rules of court.” Re Amirteymour [1979] WLR 63 determined that an action against an estate is an action in personam and therefore there must be in existence some legal person against whom steps in the action can be taken and in Piggott v Aulton (deceased) [2003] EWCA Civ 23 the Court of appeal stated, “There had to be an effective party against whom a dispute could be determined. The estate of deceased person is not such a party”. An executor or administrator must be appointed as the estate itself does not have legal personality.
The reasoning continued that CPR rule 19.12 which in limited circumstances permits proceedings against an estate to proceed without a person representing the estate does not apply in Family Proceedings. There is no authority to use FPR rule 9.26B to add a person as a party in these circumstances, and in any event there was no person willing to take on the responsibility of representing the estate. The Circuit Judge was therefore wrong to say there was no reason not to proceed with the appeal. Whilst he could have adjourned to give the second wife and the husband’s family further time to apply for letters of administration, he had considered this and decided against it on the basis of the amount of time already lapsed. Therefore the right course was to strike out the appeal, not under FPR 4.4(1)(b) on the basis that it was an abuse of process; but under FPR 30.10 which allows an appeal court to strike out the whole of an appeal notice and/or set aside permission to appeal ‘where there is a compelling reason for doing so’. The fact there was no legal personality able to pursue the appeal amounted to a compelling reason to strike out the appeal notice.
Whilst this provides a satisfactory outcome for the first wife where neither the second wife nor the wider family took steps to protect their position by taking out letters of administration, there remains an unanswered question. This is, what happens if it is the appellant who wishes to proceed with their appeal and it is the respondent who has died and no person becomes the personal representative of the estate? Here, as Lord Brandon says, a party must be substituted. It is not clear how that can be done if no personal representative has been appointed and neither CPR 19.12 nor FPR 9.26B can be used. Perhaps if such a situation arises an application for an order under 9.26B will need to be made despite the absence of authority on using it for this purpose. Alternatively, if no-one connected with the deceased is willing to take out probate / letters of administration then someone connected to appellant will presumably have to apply to do so. However, if they do so, they will need to exercise care as, however sympathetic they may be to the appellant, they would nevertheless have a fiduciary duty to the beneficiaries of the estate.
Costs orders
The jurisdiction for making costs orders also follows the Barder test as set out in paragraph 2 above. Therefore, in the same way as for substantive proceedings, the correct questions should be, “What is the true construction of the statutory power being exercised?” and “What is the impact of the 1934 Act?”
The power to make costs orders arises from FPR Part 28. The FPRs are a separate statutory regime made, in part, under the authority of s.75 and s.76 of the Courts Act 2003. FPR rule 28.1 provides that, “The court may at any time make such order as to costs as it thinks just.” This wording is extremely wide and in my view grants the court the jurisdiction to make costs orders, including in proceedings where a party has died, irrespective of whether any substantive financial remedy order can be made.
Any costs application would, of course, require substantive merit to be successful. Especially in any proceedings to which the ‘no order’ principle applies. But for example, if costs had been reserved following poor behaviour by one party at an interlocutory stage there would appear to be no reason in principle why the court would not retain jurisdiction to determine the appropriate costs order and award it after the death.
Further, that costs orders might be made was envisaged at paragraph 29 of Harb v King Fahd bin Abdul Aziz where Thorpe LJ stated, “The argument that Mrs Harb should have an opportunity to recover costs already incurred in the appeal is not impressive. To end the appeal here and now protects her from the risk of having to pay the respondent’s costs on the dismissal of the appeal.”
Denning LJ considered the impact of the 1934 Act in Sugden, and confirmed that costs orders made in financial remedy proceedings are enforceable after death of a party. He considered ‘causes of action’ that survived the death of a party under the 1934 Act extended to “rights enforceable by proceedings in the Divorce Court, provided 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…” Following Sugden there are two reported case Kelly v Kelly and Brown [1961] and Rysak v Rysak and Bugajaski [1967] where costs orders made before the death of a party were enforced by or against a deceased’s estate. Costs orders are not affected by the specific statutory requirement for a final divorce decree to have been made to enforce substantive financial remedy orders.
Conclusion
It may be that the Law Commission’s ongoing work on Financial Remedies following the publication of their Scoping Report in December 2024 will provide an opportunity for legislative reform, particularly in the circumstances arising in Unger v Ul-Hasan. However, for the time being the law appears to be settled as set out above.
This article was written by Jacqueline Humphreys. Jacqueline is a confident and highly competent advocate, specialising in the financial aspects of relationship breakdown. Find out more about her practice here.