Lucy Hoare reviews the recent judgment of Unger and another (in substitution for Hasan) (Appellants) v Ul-Hasan (deceased) and another (Respondents), and what it means for family law
A Supreme Court judgment handed down on the 28th June has unanimously dismissed the appeal bought by the “wife” in pursuing a financial claim against her deceased husband’s estate.
The claim, Unger and another (in substitution for Hasan) (Appellants) v Ul-Hasan (deceased) and another (Respondents), follows on from actions which started in 2017 when the wife Nafisa Hasan brought proceedings under Part III MFPA 1984 to obtain a financial remedy following an overseas divorce from her husband, Mahmud Ul-Hasan. It was the wife’s case that during the marriage the parties had accumulated significant wealth.
The couple were married in 1981 with the husband obtaining a divorce in 2012 in Pakistan. On the wife’s application under the 1984 Act, the court in England and Wales was empowered to make any of the orders which it could make under the Matrimonial Causes Act 1973 (“the 1973 Act”) if a decree of divorce had been granted in England and Wales. Various hearings were subsequently held, but Mahmud died in January 2021 before any adjudication was made. However, the wife sought to continue with the claim for financial relief but now against the husband’s estate.
In the High Court, Mostyn J considered that the historic case law and in particular the decision of the Court of Appeal in Sugden v Sugden (1957) was in this case binding and although he considered the authority incorrect, he felt he had to dismiss the wife’s claim against the estate of the husband. Otherwise, he would have backed the wife and the legitimacy of her claim under the Law Reform (Miscellaneous Provisions) Act 1934. Mostyn J did, however, grant a “leapfrog” certificate which allowed the wife to appeal directly from the High Court to the Supreme Court. Before this appeal was heard, the wife had also died.
There were two issues before the Supreme Court and this recent decision:
– whether the rights under the 1984 Act read with the 1973 Act, were personal rights which could only be adjudicated between living parties so that, on the death of the husband, the wife could not pursue her claim for financial relief against the husband’s estate; and
– whether a claim for financial relief under the 1984 Act is a cause of action which survives against the estate of a deceased spouse under section 1(1) of the 1934 Act.
In a unanimous dismissal, the five judges of the Supreme Court confirmed that financial claims between divorcing spouses and civil partners must end if one of them dies. The right to and obligations of financial relief are personal and cannot be pursued against the estate of the deceased spouse. A claim cannot be pursued after the death of one of the parties, this being, in their view, what Parliament must have intended.
The position, therefore, remains the same. The death of a party to a financial remedy claim will bring an end to the proceedings. However, what makes it a landmark ruling for family law is that the judgment effectively highlights the outdated status of current legislation applied to cases upon divorce and that today’s principles surrounding matrimonial property and family relationships had little historic resonance when most of the current divorce laws were determined. It acknowledged that there was indeed a defect in the law which Mostyn J’s judgment had exposed, and that reform is needed to address the limited ability to make financial orders after the death of either party to the marriage. However, in disappointing the hope of Mostyn J that his decision would be overturned on appeal, the Supreme Court emphasised the fact that the task of reform is not for the courts but has to be a matter for parliament. Yet another example of the law which needs to be brought in line with society and families today.
Clearly in any case where these issues arise specialist advice is needed. If you would like to discuss making a financial claim upon divorce, do not hesitate to contact any member of the LMP team.