Death comes as the end

Harb v Aziz CA TLR 21 November

In response to Mrs Harb’s originating application under s27 of the Matrimonial Causes Act 1973, King Fahd-Bin-Abdul Aziz of Saudi Arabia claimed not only diplomatic immunity, but also anonymity. Although both were granted by the then President of the Family Division (by the device of taking the name of the district judge and adopting the pseudonym Maple v Maple!), the Court of Appeal rejected the claim to anonymity and listed the claim to immunity for hearing in public on 29 November. Unfortunately the king died on 1 August 2005 and s27 provides a remedy exercisable only during joint lives. If, of course, during their joint lives, the applicant spouse obtains a secured provision order, then the order continues after the death of the other. That the death of the respondent during the pendency of an application for orders under ss23 and 24 of the Act might cause injustice was recognised and safeguarded by the Inheritance (Provision for Family and Dependants) Act 1975. However, no such safeguard was necessary in respect of a s27 application terminated prior to judgment by the respondent spouse’s death because the applicant could obtain relief by her application as a widow under the 1975 Act. However, that procedure was not open to Mrs Harb since King Fahd was not domiciled in England and Wales. The case might demonstrate a lacuna, given the considerable volume of litigated disputes between spouses and former spouses where the respondent held a foreign domicile. In the circumstances, Mrs Harb’s claim abated on the death of the king and the court dismissed her appeal on the ground that the king was immune from suit because that issue had become academic.