Report No. 111

7.5. English Law.-

In this context, it may be useful to note that in England, previously the prospect of re-marriage of a widow was considered to be a relevant consideration for assessing the quantum of damages payable to her on the death of her husband. The question whether the widow on re-marriage, forfeits the right to claim damages arose before the House of Lords in an interesting case. The Judgment contains certain strong arguments against considering the prospects of re-marriage as relevant to the assessment of damages to be granted to the widow.1

Lord Diplock pointed out that the prospects of marriage might themselves be affected by the amount of the award of damages, so that the larger the damages for the lost dependency, the better would be the widow's chance of obtaining another husband. As has been pointed out by a learned writer,2 it was not necessary for the House of Lords to consider what will be the measure of damages for the lost dependency, if the widow had re-married after the husband's death but before final award of damages. But he points out-

"It is of interest, however, that twice in his speech Lord Diplock pointed out that amount of the dependency should be estimated into the date of his (the husband's) death3. If the widow marries again after her husband's death, ought the compensation that became payable on his death be reduced because of a subsequent event such as her re-marriage? The widow's expectation of life will, of course, be taken into consideration in calculating the amount of the payment which she is entitled to receive, but her re-marriage might be regarded as an independent act arising after her right has vested in her. If there is evidence that she has refused an offer of marriage, can this be used to reduce her claim to dependency on the ground that it was her duty to take reasonable steps to limit her loss?

Again, if a widow who has read the Law Reports realises that financially it may be better for her to live in sin than to get married before she has received her dependency payment, ought the law to encourage her to do so? Of course, if the dependency payments were an annual payment to be made only until re-marriage, then the answer would be a simple one, but if it is a lump sum that becomes payable on her husband's death, then she ought to be entitled to it in full, even though thereafter she takes the independent step of getting re-married before the sum has been paid to her. A final point may be of interest. If the widow has suffered a severe accident to her face between the time of her husband's death and the calculations made at the trial regarding her dependency, will the damages be substantially increased because her chances of re-marriage have lessened during the interval?"

1. Mallett v. McMonagle, (1969) 2 ILR 767 (HL).

2. R.V. Baker, Note (1969) 85 LQR 305, 306.

3. Jaimal Singh v. Jawala Devi, AIR 1976 Del 127 (131).