Sonal Kanabar v Dipak Maganal Kanabar (Deceased) & Anor

This is an appeal against the order of HH Judge Rogers sitting in retirement (“the judge”) in which he allowed an appeal against a financial remedy order made in matrimonial proceedings by District Judge Birk (“the district judge”).

The central issues arising on this appeal are the powers of the appellate court in such cases where the appellant has died after being granted permission to appeal against a financial remedies order and the course to be taken where the deceased has died intestate and no one is willing to apply for letters of administration.

In this judgment, I shall refer to the deceased as H; to his first wife, the appellant in this Court, as “A”; and to his widow, the second respondent, as “B”.

The background can be summarised as follows. H and A were married in 1999 and had two daughters, both now adults. H and A separated on a date between 2006 and 2008. A and the children moved out of the family home and went to live with A’s mother. In October 2009, H filed a petition for divorce. Decree absolute was granted in November 2010.

In 2012, H married B. They had one daughter, now aged 12.

In September 2021, over thirteen years after the separation and over ten years after the divorce, H filed an application for financial relief in the divorce proceedings. The principal assets under consideration in the proceedings were three properties, all in the same road:

After various delays, due at least in part to A’s failure to comply with case management directions, a hearing took place on 7 March 2023 before District Judge Mason who made a number of directions, including an invitation to H’s father to intervene in the proceedings “due to issues relating to the beneficial interest in the properties”. He was directed to confirm by 31 March 2023 whether he wished to intervene. In that event, he would be automatically joined as an intervenor and required by additional directions to file “points of claim” to which the parties would be required to reply by “points of dispute/defence”. It was further ordered that, if he did not accept the invitation to intervene, “he shall need to attend the next hearing as a witness.” By further directions, the proceedings were listed for a preliminary issue hearing to determine the issue of the beneficial interest in the properties and a final hearing twelve weeks thereafter.

H’s father sent an email to the court confirming that he wished to intervene in the proceedings, but took no further steps to comply with DJ Mason’s directions. On 17 July 2023, A’s solicitors filed an application seeking the vacation of the hearing of the preliminary issue which had been listed for two days in August. At a hearing on 31 July, DJ Birk made an order refusing H’s father’s application to intervene, vacating the preliminary issue hearing, and directing that the final hearing remain as listed in November 2023. In her judgment on 31 July, DJ Birk found that the “entire position that we find ourselves in today … has been brought about by [H’s] father.” She continued:

“17.

I have two options, I can either extend the timetable, which will mean, also that the 27 November will have to go, because there is no guarantee that two days can be set aside for this matter, or I can simply not allow the intervenor to pursue his claim because, at the moment, I have nothing from him as to the substance of his claim, as to the merits of his claim, I have no paperwork, whatsoever.

18.

In respect of [A’s] position, she is asking, simply to proceed to the final hearing without there being any preliminary hearing issue, which effectively means that H cannot pursue an issue regarding beneficial interest in the property.

19.

Based on the fact that I have absolutely no evidence from the father in relation to this, I will agree to that application.”

There was no appeal against the order of 31 July 2023.

The final hearing took place before DJ Birk over two days in November 2023. On 5 December 2023, judgment was handed down, leading to a final order that provided, in summary, that

In her judgment, DJ Birk recorded that:

“at the start of the final hearing it was clarified by the court that one of the issues that was [not] going to be subject of evidence was whether or not H’s father had a beneficial interest in the properties …. Without the correct procedure being followed as set out by the legal framework, namely a Part 18 claim with all the necessary pleadings and evidence, it was not going to be possible [for] H to make those arguments simply by having his father give evidence as a witness, as to do so would be to allow him to circumvent the proper procedure for such arguments as is clearly set out by the Family Procedure Rules.”

In fact, H’s father gave evidence but, for reasons explained in some detail in the judgment, the district judge concluded that she could place “very little weight” on it.

The district judge summarised the parties’ respective financial positions, noting that H had a net annual income of £54,700 and A a net income of £13,700. Each party had savings and liabilities of modest value. The district judge rejected H’s contention that they jointly owed his father a sum of £98,000. The parties had pension assets valued at £163,000 (A) and £177,000 (H). As to their needs, the district judge found that A had an unmet housing need for a one-bedroom property whereas H required a two-bedroom home to accommodate B and their daughter. She concluded that H’s current accommodation at number 468 met those needs and that he was able to service the current mortgage on the property.

The district judge then analysed the capital assets.

“41.

In respect of 470 this is in H’s s sole name, it is not entirely clear where the funds came from in respect of the purchase, but in any event since there is no sustainable argument in front of me in the absence of an intervener claim for a beneficial interest, the starting and the finishing point following Stack v Dowden [2007] UKHL 17, is that the legal ownership is the beneficial ownership, whether it is matrimonial or non-matrimonial is no longer significant to the court where the needs of the parties dictate the necessity to use the assets.

42.

In this case that is for accommodation, which means that this is a capital resource which is available to the husband and must be used to meet the needs of the parties. This means that there is an equity of some £110,000 available in the matrimonial pot. As for number 472 there is a trust settlement document, I have already discounted the husband's father's account in respect of this as carrying little weight.

43.

This property was a matter of dispute between the parties, I note that the trustees, the husband's brothers, have not intervened into these proceedings to establish that the entitlement of the funds is theirs rather than that of the legal owners, that is the husband and the father. On the evidence before me therefore the husband has a half share interest in that property some £66,000.”

With the equity in number 468 valued at £33,800, she therefore concluded that the “capital matrimonial pot” available to the parties was £210,000.

For those reasons, the district judge made the order summarised above. She observed that it

“provides for a very slight departure from equality in the wife's favour, approximately 55% in A’s favour, and this is a reflection of the imbalance regarding H's contribution towards the financial burden of the children.”

On 22 December 2023, H filed a notice of appeal against the order, putting forward five grounds, asserting that the district judge erred

On 29 July 2024, however, H died intestate.

The hearing of the appeal was adjourned and relisted on 20 March 2025. Three weeks before the hearing, H’s solicitors wrote to the court asking to come off the record. They informed the court that they believed that B would apply for letters of administration but had not yet done so. Their request for an adjournment to allow her to do so was opposed by A’s solicitors. The judge agreed to the solicitors being removed from the record but refused the adjournment on paper, indicating that he would review matters at the hearing, and inviting B to attend with or without legal representation.

At the hearing on 20 March 2025, A attended represented by counsel, Mr Fikry. B attended without representation. At the end of the hearing, the judge reserved judgment which was eventually handed down on 17 June 2025.

Having summarised the parties’ financial position, the judge considered first the district judge’s treatment of the issue about the beneficial interests in the properties. He observed:

“axiomatically, if it is asserted that a particular asset is beneficially owned by a third party or, conversely, by a party to the marriage, though, in either case, the legal estate is held differently, those issues must be resolved in order that the computation of available resources is robust and accurate.”

After recording the district judge’s ruling about H’s father’s intervention at the earlier hearing on 31 July 2023, and the “clarification” at the start of the final hearing subsequently recorded in her final judgment, Judge Rogers observed (paragraph 18):

“As a result of the [district] judge's ruling, H’s counsel was precluded from pursuing any argument as to the correct computation of assets or how, in particular, 470 and 472 should be treated. Slightly surprisingly, the [district] judge did explore the matters, albeit somewhat superficially and made some reference to them in the judgment. It remains the case and is clear to me that she did not allow conventional arguments as to beneficial interests to be ventilated.”

Before considering the merits of the appeal, the judge addressed what he described as “an important and … extremely complex, and difficult procedural problem”, namely the fact that there was no personal representative to represent H’s estate. At paragraphs 27-8, he recorded what B had told him:

“27.

In short, B told me that she did not wish to take on the role of personal representative. She said that after H’s death she had found everything overwhelming and, even now, did not feel she had the stamina or confidence to take on any formal role. She attended with other family members, but no-one seemed willing to take on the role in her stead. She did tell me that above all she wished this to be resolved one way or another and was content to let me deal with it in any way I thought best.

28.

On a human level anyone would sympathize with B but from a legal point of view the position is unsatisfactory. It was not suggested by Mr Fikry that H’s death extinguished his appeal rights or somehow disposed of the appeal, but the absence of a live and active appellant creates a sort of legal limbo.”

The judge cited the decision of the Supreme Court in Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023] UKSC 22 as demonstrating that “procedurally financial remedy appeal proceedings survive the death of a party … so long as a suitable representative party is appointed to act on behalf of the estate of any deceased party”. He observed (paragraph 29):

“The question arising in the instant case is how best to proceed in the absence of such a suitable representative, with no immediate prospect of one emerging, to ensure that the appeal is justly disposed of and, as here, where funds are limited, to do so in an efficient and proportionate way.”

The first option he considered (at paragraph 30) was a further adjournment:

“I could simply adjourn the matter further in the hope that B or someone else takes on the role of Administrator. As Mr Fikry rightly points out much time has already passed and one adjournment has been granted in the expectation that B would act, but neither she nor anyone else has taken any step. I am not confident that further time will change anything and I am fortified in that view by B’s own comments. Therefore, I refuse to adjourn this appeal”.

Then at paragraph 31 he considered dismissing the appeal:

“Mr Fikry argues that I should dismiss the appeal summarily because of the delay. He submits, in my judgment somewhat ambitiously, “an appeal without an appellant cannot have merit”. I am unable to agree. That proposition seems to me to conflate procedure with merits. I am not persuaded that I could or should purport to deal with what potentially is a meritorious appeal without addressing the merits as suggested.”

Next, he considered Mr Fikry’s alternative proposal that the appeal be struck out under rule 4.4(1) of the Family Procedure Rules 2010 (“FPR”). A strike out under that sub-rule can be ordered inter alia where it appears to the court “(a) that the statement of case discloses no reasonable grounds for bringing or defending the application [or] (b) that the statement of case is an abuse of the court’s processes.” The judge concluded that neither course applied. He continued (paragraph 34):

“34.

There is, in my judgment, a more fundamental and practical objection to this course of action. Striking out is, by definition, not an adjudication on the merits. The difficulty I foresee is in the event that someone, perhaps not B, wanted to take out Letters of Administration. They would, in my judgment, be entitled and might be advised it was their duty to seek to reinstate the proceedings to revive the appeal. That would lead to yet more procedural litigation. They would, of course, have to persuade the Court to grant relief and would have to explain the delays, but nonetheless they could legitimately point to the potential substantial injustice of refusing relief. On any view the uncertainty would be continued.

35.

Even more troubling is that striking out the Appellant’s Notice would provide A with a fairly limited remedy. It would conclude these proceedings in principle but plainly it would not resolve the ongoing dispute about beneficial ownership. A would be left with a virtually unenforceable order bearing in mind the co-ownership of 268 with the consequences for the mortgage and, more significantly, the order for sale of 270. On the Judge’s findings, as they stand, 270 was owned legally and beneficially by H at his death. Therefore, it forms part of his estate. The Judge’s order cannot be read as a transfer of H’s beneficial interest in 270 to A as it is expressly an order for sale. Until that estate is administered, things cannot move on…”

The judge added that Mr Fikry had not invited the court to consider the power to strike out an appeal under FPR rule 30.10. He continued:

“37.

Perhaps anticipating my decision … Mr Fikry says his client is content for the appeal to be determined on its merits and urges me to do so. As I have indicated, B, although strictly not interested in the proceedings, is also keen for the matter to be determined and asks me to proceed. I confess that I have not found this as easy as Mr Fikry contends. I too am desperate to find a swift and proportionate route through the procedural maze but, plainly, it must be permissible and fair to all concerned.”

Having considered and dismissed several other procedural options, (including “in extremis” adding a party “with the specific purpose of administering the estate”), the judge concluded:

“41.

In all the circumstances, at the hearing, having discussed the matter with Mr Fikry and with his and B’s agreement, I proceeded to hear the appeal on the merits. In circumstances I am satisfied that, notwithstanding the lack of an active appellant, there is nevertheless a properly constituted appeal and no reason not to proceed. Normally the lack of one side would make the process manifestly unfair. Here, though, the arguments are technical and legal and have been set out in writing in full on behalf of H by his then counsel. Mr Fikry, helpfully and conscientiously, did not seek to take any new point or to act in any way to take advantage of a lack of opposing advocate or party. I still had and have some misgivings but what in the end persuades me is that the process is proportionate and fair and is the way of resolving the knotty difficulties raised by the Judge’s decisions.”

He added:

“42.

If I am wrong, I remain satisfied that a detailed discussion of the merits is useful. It is certainly not an academic exercise as the unresolved matters will undoubtedly arise later in any event in some guise. These parties are entitled to know where they stand on this appeal. At the very least, it may provide the context for further meaningful discussions, perhaps through the medium of mediation or some other out-of-court process, so that they may at last achieve a sensible and workable outcome which is fair to all.”

The judge then turned to the merits, focusing in particular on ground 1. He accepted that the district judge had been right on 31 July 2023 to refuse H’s father’s application to intervene. But he continued (at paragraph 47):

“What happened thereafter, in my judgment, derailed the case and can, without doubt, be characterised as wrong in law and a serious procedural irregularity. The fact that a third party has declined to or has been refused permission to intervene does not mean that the underlying factual issue is thereby resolved. In financial remedy proceedings, at the computative stage, the Court still has a duty to determine what issues are in play and should be included in the ES2. A party to the proceedings can, and in my experience often does, assert third party beneficial ownership. Just because the third party for whatever reason is unco-operative, cannot, in my judgment, inhibit the party to the proceedings from pursuing the point.”

He considered, but rejected, a submission by Mr Fikry that at the hearing on 31 July the district judge had made a substantive, and unappealed, decision barring H from presenting his case as to the beneficial interests. On the contrary, he found that the documents prepared for the final hearing demonstrated that beneficial ownership was a live issue but was one with which the district judge had not really engaged. As a result, he held (paragraph 60) that “the course adopted meant that the hearing was fatally flawed and the orders ultimately made were predicated upon untested and potentially entirely false premises.” He was further critical of the district judge’s decision about the ownership of number 472 which was based on her “critique” of H’s father’s evidence rather than the “clear factual position” demonstrated by the settlement which was “a Deed and speaks for itself”. He added:

“To reject its contents because [H’s father] was unable to explain it and/or because the trustees (the brothers) had not given evidence is, in my judgement, wrong.”

For those reasons, the judge held that ground 1 was made out. He proceeded to hold that the appeal should also succeed on ground 2, on the basis (paragraphs 66-7) that

“The timing of the acquisition of the properties 470 and 472, one significantly after separation and divorce and one significantly before the marriage, obviously gives rise to major questions as to their status as matrimonial or non-matrimonial …. [G]iven the very unusual circumstances and timescales, it seems to me a material misdirection to say in a needs case the source of the assets is irrelevant without conducting at least a basic analysis of the competing factors.”

He dismissed grounds 3 and 4 and found it unnecessary to consider ground 5.

As a result, the district judge’s order was set aside. The judge decided that, although he had the powers of the court below, he was not in a position to substitute an order because he was in no position to resolve the issues as to the beneficial ownership of the properties. At paragraph 72 of his judgment, he observed that, but for H’s death, the next step would be to remit the matter for rehearing. Whilst expressing no decided view, he recognised that the consequences of the death, as explained by the Supreme Court in Unger, may mean that A’s claim was no longer capable of pursuit. He encouraged A to seek legal advice, including as to “other potential remedies using different statutory routes”, and again urged B and H’s wider family to “grasp the nettle of the administration of H’s estate”.

At this point, it is worth pointing out the consequences of this outcome. The judge’s suggestion of “other potential remedies” for A “using different statutory routes” was clearly a reference to possible claims against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) or under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”). Under s.3(2) of the 1975 Act, in the case of an application by the deceased’s spouse, the court must have regard to the provision which the applicant might reasonably have expected to receive if on the day of death the marriage had been terminated by divorce rather than death. Under s.14, a claimant who is a former spouse is treated for the purposes of claims under the Act as if the final divorce order had not been made, but only where less than 12 months has passed between that order and the death. In this case, H and A were divorced over thirteen years before H’s death. Although this Court is in no position to express a clear view on the consequences for A, it was submitted on her behalf that, if she made a claim under TOLATA, she may be entitled to no more than her half share of the equity in number 468.

On 16 July 2025, A filed a notice of appeal against the judge’s order. Permission to appeal was granted by Cobb LJ on 12 November 2025. B was joined as a respondent to the appeal. The order granting permission recorded that she had “confirmed that she has now obtained letters of administration in respect of her deceased husband’s estate”. In fact, we were told at the hearing of the appeal, although B has applied for letters of administration, they have not yet been granted. In October 2025, A entered a caveat against the grant but that expired after the statutory six months.

At the appeal hearing, we were told of several further developments, although no application was made for the admission of fresh evidence. First, H’s father has now also died. Secondly, B continues to occupy number 468 with her daughter. Thirdly, the instalments on the mortgage on that property and number 470 are in arrears.

The appellant was given permission to appeal on four grounds:

The focus of the hearing of the appeal before us was on ground 1. In granting permission to appeal, Cobb LJ observed that ground 1 “raises an important point of principle and/or practice, namely what the court should do when the proposed appellant (to whom permission to appeal from the decision of a District Judge has been granted) dies intestate, and no person is in a position (or apparently willing) to take out letters of administration and/or authorised to prosecute the appeal before the Circuit Judge.” He added that that the procedure by which the judge heard the appeal in the absence of an appellant was “arguably irregular” and that the “alleged defect in procedure is all the more troubling given that the judge allowed the appeal, leaving [A] with no effective relief.”

At Cobb LJ’s direction, the Attorney General was asked to appoint an advocate to the court, to address the following issues:

William Tyzack was duly appointed as advocate to the court and, assisted by Sophie Cullis, prepared extensive written submissions on the issues identified by Cobb LJ, and further submissions, and attended the appeal hearing at which he made supplemental oral submissions. At the hearing, the appellant A was represented by Duncan Brooks KC leading Mr Fikry. B, who had appeared in person before the judge, was represented by Andrew Pote leading Nigel Cholerton, who were instructed at a late stage after solicitors representing B served a notice of acting three weeks before the hearing. The Court is grateful to all counsel for their helpful submissions.

Grounds 1 and 4 concern issues as to jurisdiction arising as a result of H’s death. Grounds 2 and 3 concern substantive issues about the merits of the district judge’s order. I shall consider ground 4 first followed by ground 1.

Ground 4 raises the difficult questions of whether an appeal, for which permission to appeal has been granted, survives the death of the appellant and, if so, the extent of the appellate court’s powers. Addressing those questions involves consideration of the decision of the House of Lords in Barder v Caluori [1988] AC 20 (“Barder”) and the recent judgment of the Supreme Court in Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023] UKSC 22 (“Unger”), on appeal from the decision of Mostyn J reported as Hasan v Ul-Hasan (Deceased) & Anor (Rev2) [2021] EWHC 1791 (Fam) .

Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 provides, as amended and so far as relevant to this appeal:

“on the death of any person after the commencement of this Act 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. Provided that this subsection shall not apply to causes of action for defamation.”

The statute does not exclude claims for financial remedies in matrimonial proceedings. But, as Mr Tyzack submitted, the “orthodox understanding” has hitherto been that that such claims do not survive death. Applications made under Part II of the Matrimonial Causes Act 1973 (“the 1973 Act”) and, following a divorce overseas, under Part III of the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”) are based on rights and obligations which end with the death of a party to the marriage. That orthodoxy, which derives from a number earlier decisions of this Court over the last 130 years, in particular Sugden v Sugden [1957] P 120, has been challenged on the grounds that the law now recognises that a claim for matrimonial financial remedies is brought as of right (see White v White [2001] 1 AC 596 and Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618 “Miller and McFarlane”) and therefore amounts to a cause of action which passes on death under the 1934 Act.

The tragic circumstances in Barder are well known. In that case a consent order was made by a registrar in matrimonial proceedings transferring the legal estate and beneficial interest in the former matrimonial home to the wife who had been granted care and control of the two children. After the time limit for appeal had expired but before the order was executed, the wife killed the children and herself. A judge granted the husband leave to appeal and set aside the order on the grounds that it had been vitiated by a fundamental mistake. This Court allowed an appeal by the wife’s mother as intervenor but on further appeal the House of Lords restored the judge’s decision to set aside the order.

The reasons for the decision were set out in the speech of Lord Brandon of Oakbrook with which the other Lords of Appeal agreed. He considered first the submission that, under the “doctrine of abatement”, while the court had jurisdiction, on the intervenor’s application, to enforce the registrar’s order against the husband, it had no jurisdiction to entertain the husband’s appeal against the order. Describing this result as “obviously unjust”, Lord Brandon considered the earlier authorities, including Sugden v Sugden, from which he drew the following conclusions (at page 37 D to F):

“First, 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 take on it. The passage in the judgment of Shearman J in Maconochie v Maconochie [1916] P 326, 328, in which he stated that such a general rule existed, cannot be supported. Secondly, it is unhelpful, in cases of the kind under discussion, to refer to abatement at all. The real question in such case is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken. Thirdly, the 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 of 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.”

Lord Brandon cited the decision of this Court in Purse v Purse [1981] Fam 143. In that case, a wife had sought leave to appeal out of time against a decree absolute made under s. 1(2)(e) of the 1973 Act on grounds of five years’ separation. No notice of the proceedings had been given to the wife who, it was argued, would have had grounds for resisting the decree on the basis, at that time provided under the statute, that divorce would cause her grave financial hardship. Sixteen months after the decree absolute the husband died. The wife only heard of his death eight months later. When she contacted his former employers enquiring about a widow’s pension, she learnt that the marriage had been dissolved. The Court of Appeal held that she had a statutory right of appeal, assuming leave was granted, and that there was no authority which removed the court’s power to exercise its appellate function merely because of the intervening death of one of the parties.

In Barder (at page 38 A – D, in a passage not cited by the Supreme Court in Unger)Lord Brandon substantially endorsed the approach adopted by this Court in Purse. He observed

“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 death of one of the parties to the cause in which the decision was made. In a case other than a matrimonial cause I do not think that it would even be suggested that the statutory right of appeal would lapse because of the death of one of the parties to it. I cannot see why a matrimonial cause should be different in this respect. 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.”

On the facts in Barder, Lord Brandon noted that the wife had a statutory right to bring an appeal under the rules then in force, provided she was granted leave to appeal out of time. The question was whether, on the true construction of the rules, the jurisdiction to entertain an appeal out of time by one party to a divorce suit against a registrar’s matrimonial finance order only lasted so long as the other party to the suit is alive and lapses on the latter’s death. Lord Brandon concluded (page 39F):

“For the reasons which I have already given in relation to the comparable question in Purse v Purse [1981] Fam 143 I can see no good ground for putting such a limited construction on the rules of court.”

Lord Brandon continued (page 39 F – H):

“There is another approach to the matter which leads to the same result. It was common ground that the wife’s mother, as her personal representative, was entitled to enforce the registrar’s order against the husband. Since that right was derived by the wife’s mother from the wife, it could be no more immune to the possibility of defeat than the right would have been in the hands of the wife if she had lived. If the wife had lived, her right of enforcement would have been subject to the possibility of defeat by an appeal out of time by the husband on proper grounds. That being so, the right of enforcement which devolved on the wife’s mother remained subject to the same possibility.”

Lord Brandon then addressed the question whether leave to appeal out of time should be granted on the ground that assumptions made at the time of the lower court hearing had been invalidated by subsequent events. He concluded that leave to appeal could be granted, provided certain conditions were satisfied, namely that (1) “new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed”; (2) the new events should have occurred “within a relatively short time of the order having been made”; (3) the application for leave is made reasonably promptly, and (4) the grant of leave should not prejudice third party rights. Applying those conditions to the facts in Barder, he restored the judge’s order setting aside the registrar’s order.

In Barder, the financial remedy order was simply set aside without any reconsideration of the merits of the claim. In subsequent cases, however, courts have granted leave to appeal out of time after so-called “Barder” events, allowed the appeal and then, rather than simply setting aside the order, proceeded to determine the order which should be made in the light of those events: see Smith v Smith [1992] Fam 69, Reid v Reid [2004] 1 FLR 736 and WA v Estate of HA [2015] EWHC 2233 (Fam), [2016] 1 FLR 1360.

In Unger, a wife was granted leave to bring an application for financial relief after an overseas divorce under Part III of the 1984 Act. Three weeks before the hearing the husband died. Considering himself bound by Sugden, Mostyn J dismissed the wife’s application but, after expressing the view in trenchant terms that the law was wrong, granted a certificate under section 12(1) of the Administration of Justice Act 1969 to facilitate a “leapfrog” appeal to the Supreme Court. Whilst expressing some sympathy for some of Mostyn J’s observations, the Supreme Court in Unger upheld the orthodox view. The Court held that, on their true construction, the statutory provisions in the 1973 and 1984 Acts, considered in the context of the 1975 Act, created personal rights and obligations which can only be adjudicated between living parties and that the issue whether a claim for financial relief after divorce is a cause of action which survives against the estate of a deceased spouse under the 1934 Act did not arise for determination. Any change in the law was, the Supreme Court held, a matter for Parliament.

In his judgment in Unger,Lord Stephens cited the passage in Barder at page 37D to F, (quoted in paragraph 40 above), in which Lord Brandon set out the conclusions he drew from earlier authorities. Lord Stephens held (at paragraph 28) that the “sequence of questions and matters to be considered, as set out by Lord Brandon, remains the correct sequence in relation to matrimonial legislation such as the 1984 Act and 1973 Act.” Addressing Lord Brandon’s second conclusion, he identified the issue arising in Unger as being “whether, where one of the parties to an application under Part III of the 1984 Act for financial relief has died, further proceedings can or cannot be taken.” There was no dispute as to nature of the further proceedings sought to be taken, namely the continuation of the claim for financial relief, in that case under s.17 of the 1984 Act, which involved consideration of whether to make any of the orders available under Part II of the 1973 Act. In answering the question, it was therefore necessary to determine whether on the true construction of the relevant statutory provisions in the 1973 and 1984 Acts, considered in the context of the 1975 Act, further proceedings in the suit could be taken when one of the parties has died.

Lord Stephens identified a number of judicial decisions which, he observed at paragraph 39, “have consistently construed matrimonial legislation as creating personal rights and obligations which end with the death of a party to the marriage, and cannot be pursued against the deceased’s estate.” Having analysed those decisions, he said (at paragraph 57):

“It is against this contextual background, of there being a long-established legal understanding that rights against one's spouse are personal only and do not survive the death of either spouse, that the words of the 1973, 1975 and 1984 Acts must be interpreted. If a purpose of the statutes was to depart from that settled understanding, one would have expected there to be clear words to that effect. Instead, as will become apparent, Parliament used similar terminology as in an earlier statute which had been authoritatively interpreted as meaning that an application could only be made and proceeded with by one spouse against another while both remained alive.”

Lord Stephens then considered the decision of this Court (Thorpe LJ, Dyson LJ and Wall LJ) in Harb v King Fahd Bin Abdul Aziz [2005] EWCA Civ 1324, concerning a claim under s.27 of the 1973 Act which enables a court to make an order for financial provision against a party to a marriage in favour of the other party or a child of the family. On a preliminary issue to determine the effect on the proceedings of the husband's death, the Court of Appeal held that section 27(6) enabled the court to make orders against the other party to a marriage during joint lives only. In the words of Wall LJ, for s.27 to apply “there must be a subsisting marriage.” Lord Stephens observed (at paragraph 64 in Unger) that the decision in Harb v King Fahd Bin Abdul Aziz was further authority that that powers to make orders for financial relief under the 1973 Act, and the corresponding powers under the 1984 Act, must be construed and interpreted against the background of the earlier legislation and how that earlier legislation had been interpreted and understood.

At paragraphs 65 to 77 of his judgment, Lord Stephens demonstrated that the orthodox understanding that financial provision on divorce only enables orders to be made as between living parties to a former marriage is also to be found in the provisions which Parliament has enacted in relation to inheritance in the 1975 Act. At paragraphs 78 to 94, he demonstrated that a textual analysis of the 1973 and 1984 Acts, viewed in the legal context of the established orthodox understanding, provided “conclusive indicators” that the court lacks jurisdiction to make an order for financial relief under either Act on the death of one of the parties to the marriage, “subject only to consideration of a line of authorities applying the principles in Barder”.

Lord Stephens set out those principles and referred to Smith v Smith and the subsequent cases in which it had been applied. He concluded (paragraph 100):

“If an applicant successfully satisfies the conditions for leave to appeal applying the principles in Barder and if the appeal is allowed, then the appeal court can, on a redetermination, consider what order ought to have been made, even though one of the spouses has died. I consider this to be a discrete but limited exception to the general rule that the 1973 Act creates personal rights and obligations which end with the death of a party to the marriage, and which cannot be pursued against the deceased’s estate. I consider that this limited exception is not a sufficient basis on which to undertake a radical change to the construction of matrimonial legislation.”

Referring to Mostyn J’s judgment at first instance as “potentially seminal”. Lord Stephens acknowledged that there may be case for reform but added that “reform is plainly for Parliament. It is not for the courts to distort the meaning of the words of the relevant statutes to achieve such a radical reform.”

In a concurring judgment, Lord Leggatt (at paragraph 109) agreed with Mostyn J’s description of the current position as “illogical, arbitrary and capable of meting out great injustice”. He observed that, following the “paradigm shift in judicial attitude and approach towards financial claims” reflected in the decisions in White v White and Miller and McFarlane, there can be “no doubt that, today, a financial order claim is not a mere hope or contingency. It is a cause of action and is therefore capable in principle of passing on death by operation of the 1934 Act” (paragraph 116). He concluded, however, (at paragraph 141):

“The complex interplay between Part III (and the 1973 Act) on the one hand and the Inheritance Act on the other also means that reform aimed at remedying the injustice that results from the limited ability to make a financial order after either party to the marriage has died would require an overall view to be taken of both legislative regimes and of how they do, and should, interact. Only Parliament is competent to undertake that task and to make and implement the policy choices that would be involved. It is not open to this court to cut the Gordian knot and achieve a solution by interpretation of the existing statutory provisions.”

Unlike Lord Stephens, Lord Leggatt made no reference to the decision in Barder. The other Justices (Lord Hodge, Lord Hamblen and Lord Burrows) agreed with both judgments.

The question which has never been expressly addressed, so far as we were informed, is whether the court has the power to set aside or vary a financial remedies order on an appeal where leave to appeal has been granted but one of the parties dies before the appeal is heard. This is central to ground 4 in this appeal, which asserts that, having allowed the appeal against the district judge’s order, the judge was wrong not to substitute a different order, thereby leaving the appellant with almost nothing from the marriage, and with no clear remedy under the 1975 Act and ought instead to have made what provision for W he could in the circumstances. On one reading of Lord Brandon’s analysis in Barder, there is “no good reason” why the statutory right of appeal, and the power on appeal to re-determine the claim for financial remedies, should ever lapse on the intervening death of one of the parties, a fortiori where the appellant has been granted permission to appeal. On the other hand, the Supreme Court in Unger has ruled that the Barder principles, confined to cases where a Barder event has occurred, represent “a discrete but limited exception to the general rule that the 1973 Act creates personal rights and obligations which end with the death of a party to the marriage.”

Mr Brooks and Mr Fikry on behalf of A contended that the judge on appeal had the power to substitute a different order notwithstanding the death of a party, and that the observations of the Supreme Court in Unger at paragraph 100 were not limited to Barder appeals but applied to all financial remedy appeals where an appellant dies before the hearing because the power to substitute a different decision stems from the appeal, not from the underlying financial remedy claim. Mr Pote and Mr Cholerton, who as I have already noted were instructed at a late stage on behalf of B, conceded that a court had the power on appeal to substitute a different order notwithstanding the death of one of the parties, but submitted that on the facts of this case the judge was right to decline to do so, given the district judge’s failure to address issues about the beneficial interests in the properties. Cobb LJ’s directions to the advocate to the court were confined to the issues arising under ground 1. Nevertheless, Mr Tyzack and Ms Cullis made some helpful submissions about the law arising on ground 4, although they did not express a concluded view.

Mr Tyzack articulated the difficulty in this way. Central to the ratio of Barder is the occurrence of a supervening event within a relatively short time which has invalidated the fundamental assumption on which the order was made. Arguably, therefore, it is only those circumstances which open the door to the “limited exception” set out by Lord Stephens - i.e. the ability of the court on appeal to make different provision following the death of a party. But if the court’s powers are more limited in a ‘conventional’ appeal (where a party has died in circumstances which do not amount to a Barder event), this would leave the appeal court, after setting aside an order it has determined to be wrong, no longer capable of redetermining the claim at all. Mr Tyzack suggested that it might be argued that the powers to redetermine the claim after a successful appeal where a party has died are not confined to the Barder principle because, under FPR rule 30.11(1), the appeal court has all the powers of the lower court. He acknowledged, however, that it could also be reasoned that, by the time of any reconsideration, the death of the party would mean that the powers of the lower court had been wholly extinguished by the claims abating.

This situation has been described, with some justification, as a conundrum (“Hasan – The Barder Conundrum”, Joseph Rainer and Jennifer Lee, Financial Remedies Journal (2023) page 179). It follows that, if this appeal turned on ground 4, the outcome would not be straightforward.

In the present case, however, there is in any event a substantial and, in my view, insurmountable impediment to the prosecution of the statutory right of appeal. No letters of administration have been granted in respect of H’s estate. As noted above, Lord Brandon in Barder 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.”

The consequences of a failure to take those procedural steps arises under ground 1 and was the central issue at the hearing of the present appeal.

Whereas executors of a will are entitled to take certain steps prior to probate being granted, a party entitled to a grant of administration can do nothing as administrator before obtaining a grant because administrators derive authority entirely from their appointment by the court (see Williams, Mortimer & Sunnucks on Executors, Administrators and Probate, 22^nd edition, at paragraph 5-13).

In Re Amirteymour [1979] 1 WLR 63, this Court (consisting, unusually, of three Law Lords – Lord Diplock, Viscount Dilhorne and Lord Scarman) held that proceedings against the estate of a deceased person under the statute then in force took the form of an action in personam. At page 66H, the Court stated:

“As in all actions in personam there must be in existence some person, natural or artificial and recognised by law, as a defendant against whom steps in the action can be taken. If and so long as there is no such person the action, though it may not abate, cannot be continued ….”

In Piggott v Aulton (deceased) [2003] EWCA Civ 23, the claimant and the deceased were involved in a road accident. Proceedings were issued within the limitation period against the deceased’s estate but discontinued because no personal representatives had been appointed. Further proceedings were later issued after the limitation period had expired and a person appointed to represent the estate under rules of court considered below. The defendant argued that service of the new proceedings was an abuse of process under the principle in Walkley v Precision Forgings Ltd [1979] 1 WLR 606 that once a claimant had started proceedings within the primary limitation period it was only in the most exceptional circumstances that he would be allowed to bring himself within s.33 of the Limitation Act 1980 to bring a second claim on the same cause of action. The defendant’s argument failed at first instance and on appeal to this Court. Although a claim could be commenced against an estate where no personal representative had been appointed, it could not be continued without such an appointment. At paragraph 19, Arden LJ stated:

“There had to be an effective party against whom a dispute could be determined. The estate of a deceased person is not such a party.”

At paragraph 21, she continued:

“The natural personality of the deceased came to an end on his death. His legal persona, that is the right to take possession of his property and the obligation to discharge his liabilities, could have passed to his personal representatives, as between whom and the deceased there would have been an identity of persona. But the deceased in this case had no personal representatives. Accordingly, the first action was brought against a person without legal personality.”

The Civil Procedure Rules 1998 (“CPR”) contains provisions which go some way to address these problems under rule 19.12, headed “Death”. CPR rule 19.12(1) provides:

“Where a person who had an interest in a claim has died and that person has no personal representative the court may order:-

(a)

the claim to proceed in the absence of a person representing the estate of the deceased; or

(b)

a person to be appointed to represent the estate of the deceased.”

This rule has its origins in Victorian reforms of historical Chancery practice (see the interesting discussion in the judgment of Richard Smith J in Bourlakova & Ors v Bourlakova & Ors [2024] EWHC 1937 (Ch)). As Rimer LJ observed in Millburn-Snell & Ors v Evans [2011] EWCA Civ 577 (at paragraph 22), it “is clearly concerned only with (i) proceedings that have already been issued, and (ii) what orders for their further prosecution may be made in circumstances in which the conditions described in its opening words are satisfied.”

This provision is, however, of no assistance in the present case. The circumstances in which it will be appropriate under rule 19.12(1)(a) to order a claim to proceed in the absence of a person representing the estate of the deceased are likely to be limited to relatively straightforward claims, for example, as Robert Walker LJ suggested in Berti v Steele Raymond [2001] EWCA Civ 2079 at paragraph 5, “relatively small claims [where] the need for a formal grant may be disproportionate and cause unnecessary delay and expense”. The present case is far from straightforward and the interests of the estate are sufficiently complex to make it inappropriate for a court to proceed without the estate being represented. The editors of Civil Procedure (the White Book) observe (2026 edition, paragraph 19.12.1) that:

“Orders to proceed in the absence of anyone to represent the deceased’s estate are not commonly made. It may be appropriate if there are other parties to the proceedings with the same interest as the deceased and if the delay and expense of appointing a representative would be disproportionate.”

The editors of Williams, Mortimer & Sunnucks on Executors, Administrators and Probate, 22nd edition, suggest (at paragraph 55-39) that a representation order would be appropriate if it is necessary that the deceased’s estate be bound by the substantive order. Rule 19(1)(b) can only apply, however, if there is someone able and willing to represent the estate, and at the time of the hearing before the judge no member of the family was willing to act in that capacity.

There is, however, a more fundamental objection. CPR rule 19.12 does not apply to family proceedings.

The FPR are made under s.75(1) of the Courts Act 2003 to “govern the practice and procedure to be followed in family proceedings” as defined in s.75(3). They were established as “a new procedural code” (FPR rule 1.1(1)) with a specific overriding objective. They are wholly separate from the CPR which have their own objective. CPR rule 2.1 provides that the CPR do not apply to family proceedings made under s.75 of the Courts Act.

Many provisions appear on both sets of rules. But provisions in the CPR that are not included in the FPR do not apply to family proceedings, just as provisions in the FPR that are not included in the CPR do not apply to civil proceedings.

Prior to the implementation of the FPR, the position was different. Under the previous rules, the Family Proceedings Rules 1991, rule 1(3) provided that:

“Subject to the provisions of these rules and of any enactment the County Court Rules 1981 and the Rules of the Supreme Court 1965 shall apply, with the necessary modifications, to family proceedings in a county court and the High Court respectively.”

This provision continued for over a decade after the implementation of the CPR in 1999 and the introduction of the FPR in 2010. During that period, the old County Court Rules and Rules of the Supreme Court continued to apply in family proceedings, subject to the provisions in the Family Proceedings Rules 1991. There is now no equivalent provision in the FPR.

It follows that CPR rule 19.12(1) does not apply to family proceedings. It is unclear whether this omission is deliberate or inadvertent. It could, of course, be a reflection of the “orthodox understanding” that claims for financial remedies do not survive the death of one of the parties.

The judge suggested that it might be possible to utilise FPR rule 9.26B. Headed “Adding or removing parties”, this provides, so far as relevant:

“(1)

The court may direct that a person or body be added as a party to proceedings for a financial remedy if—

(a)

it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b)

there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

…

(4)

The power of the court under this rule to direct that a party be added or removed may be exercised either on the court’s own initiative or on the application of an existing party or a person or body who wishes to become a party.”

Mr Tyzack suggested that it is feasible that, pursuant to this rule, the court may have the power to appoint a person to represent a deceased’s estate within financial remedy appeal proceedings.There is no authority for using this power in the way postulated by Mr Tyzack. In any event, it was not an option here as no party was willing to take on the responsibility of representing the estate.

Mr Tyzack also drew attention to the court’s powers to proceed in the absence of a party. S.31F(7) of the 1984 Act provides that, subject to rules of court, the family court may proceed in the absence of one, some or all of the parties. FPR rule 18.12 provides, in identical terms to CPR rule 23.11, that where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in the absence of that person. Although in theory this approach might be extrapolated to cases where a party had died, such a course seems to me to be contrary to the principles established in the cases cited above. The appellant was not merely absent, but non-existent. In the absence of a representative an estate has no legal personality. As Mr Brooks observed in submissions on behalf of A, there was no appellant and no realistic prospect of one emerging. Without an effective appellant, an appeal cannot continue.

The judge was therefore wrong to say (at paragraph 41 of his judgment) that “notwithstanding the lack of an active appellant, there is nevertheless a properly constituted appeal and no reason not to proceed.” On the contrary, the appeal was not properly constituted. There was no appellant with a legal personality and therefore no basis on which the appeal could properly proceed. I do not accept Mr Pote’s submission on behalf of B that it was clearly within the judge’s discretion to hear the appeal. The fact that B, acting in person, and Mr Fikry on behalf of A agreed to the appeal proceedings continuing did not entitle the judge to take that course.

It would have been open to the judge to have adjourned the appeal to allow B and members of H’s family more time to apply for letters of administration. But he refused to do so for the clear reasons set out in his judgment at paragraph 30, namely that “much time” had already passed, one adjournment had already been allowed in the expectation that an application for letters of administration would be made, that in fact no such application had been made, and that he was “not confident that further time will change anything.”

In those circumstances, the only option open to him was to bring the proceedings to an end. It was suggested that he could have simply dismissed the appeal. Mr Tyzack drew attention to FPR rule 27.4(4) which gives the court the power to refuse an application where the applicant does not appear at the hearing. He also cited the decision of this Court in Leave.EU Group Ltd and another v Information Commissioner [2022] EWCA Civ 109; [2022] 1 WLR 1909. In that case, the corporate appellant failed to appear before the Court of Appeal on the date listed for the hearing of the substantive appeal for which permission to appeal had been granted. The Court dismissed the appeal without a substantive assessment of the merits of the appeal, holding that (in the words of Sir Geoffrey Vos MR at paragraph 18) “the Court of Appeal has an inherent jurisdiction either to hear an appeal in the absence of one party or to dismiss an appeal when the appellant fails to appear for a substantive hearing.” Those powers seem to me to be directed at cases where an existing party fails to attend a hearing. Here, there was no effective appellant at all.

In my view, the right course would have been to strike out the appeal. It was suggested to the judge, and to us, that it was open to the court below to strike out the appeal under FPR rule 4.4(1)(b) which empowers the family court in certain proceedings to strike out a statement of case if it appears to the court that the statement of case is an abuse of process. This seems to me to have no application in the present circumstances. Although it may in theory be possible to include a notice of appeal within the meaning of “statement of case” in rule 4.4(1), there is nothing in the conduct of the proceedings which could fairly be described as an abuse of process.

There was, however, a procedure available to the judge under FPR rule 30.10, (in terms identical to CPR rule 52.18) which provides so far as relevant:

“(1)

The appeal court may

(a)

strike out the whole or part of an appeal notice;

(b)

set aside permission to appeal in whole or in part;

(c)

impose or vary conditions upon which an appeal may be brought.

(2)

The court will only exercise its powers under paragraph (1) where there is a compelling reason for doing so.”

In my view, the fact that there was no legal personality able to pursue the appeal amounted to a compelling reason for striking out the appeal notice. It is unnecessary to characterise the circumstances as an abuse of process to bring them within the terms of rule 30.10(1)(a).

For those reasons I would allow the appeal on ground 1 and restore the district judge’s order. I have every sympathy with the predicament in which the judge found himself. The procedural problems thrown up by the appeal have taxed everyone. But with the benefit of extensive submissions and time for reflection, which as so often were not available to the judge at first instance, I have reached a clear conclusion that the course he took was wrong in law.

In those circumstances, it is neither necessary nor appropriate to consider the remaining grounds any further. Given the dwindling value of the assets in dispute, I strongly urge the parties to renew efforts to resolve the remaining issues without further litigation. But as there is a significant prospect of further proceedings involving A, B and H’s family, it would be unhelpful to say anything about the merits of the arguments in grounds 2 and 3.

As for ground 4, any conclusion would require us to answer the difficult question identified at paragraph 55 above – whether the court has the power to set aside or vary a financial remedies order on an appeal where leave to appeal has been granted but one of the parties dies before the appeal is heard. If, as I propose, the appeal is allowed on ground 1, it is unnecessary to reach a conclusion on ground 4. For my part, I would prefer to leave a decision on the question identified in paragraph 55 to a case where it falls for a definitive determination and the court has the benefit of full arguments on both sides. Such arguments would, of course, include submissions on behalf of the personal representatives of the deceased’s estate. It is the absence of such submissions which leads me to conclude, on the one hand, that the appeal must be allowed on ground 1 and, on the other, that it is both unnecessary and inappropriate to reach a conclusion on ground 4.

I would only add that there is clearly very considerable force in the views expressed by Mostyn J and Lord Leggatt in Unger. The forthcoming government consultation on matrimonial financial and cohabitation law may provide an opportunity for a review of the circumstances in which claims for financial remedies after relationship breakdown survive the death of one of the parties.

I agree.

I also agree.