The Supreme Court recently made a ruling in the case of Unger and anor v Ul-Hasan (deceased) and anor, reinforcing that the death of a party to a marriage brings an end to unresolved financial claims related to their divorce. The Supreme Court unanimously dismissed the appeal made by a wife seeking financial relief from her deceased husband’s estate, as he had passed away before the final determination of her financial application.
Lord Stephens, delivering the lead judgment, emphasized that significant reforms, which would require substantial changes to long-established principles, would be necessary to allow a party to continue a claim despite the death of the other party. Lord Stephens clarified that such reforms must be enacted by Parliament rather than determined by the courts.
The case involved Nafisha Hasan (the wife) and Mahmud Ul-Hasan (the husband), who married in 1981. The husband obtained a divorce in Pakistan in 2012 and the wife subsequently applied for financial relief in England and Wales, based upon the recognition of the divorce by the court in England and Wales. However, the husband passed away in Dubai at the age of 81, just weeks before the final hearing of the wife’s application. Despite his death, the wife sought to proceed with her claim against his estate.
The Supreme Court allowed the appeal to be heard directly from the High Court, and although the wife also passed away prior to the Supreme Court appeal, her daughter and son-in-law acted as appellants in her place.
In the lead judgment, Lord Stephens outlined the established legal understanding that matrimonial legislation creates personal rights and obligations. These personal rights and obligations cease to exist upon the death of a party to the marriage. The Supreme Court presumed that Parliament was aware of this understanding when enacting relevant matrimonial legislation, such as the Matrimonial Causes Act 1973, the Inheritance (Provision for Family and Dependants) Act 1975, and the Matrimonial and Family Proceedings Act 1984.
The appeal was therefore dismissed, based on the interpretation that the rights against one’s spouse are personal and do not survive the death of either spouse. Lord Stephens emphasized that allowing a party to continue a claim under such legislation, despite the death of the other party, would require significant reforms and bring about substantial changes to well-established principles. Furthermore, such reforms would raise policy questions regarding their impact on succession law and potentially, insolvency law.
The judgment clarified that the power of a court in England and Wales to order financial relief after an overseas divorce can only be exercised between living parties to a former marriage. However, it appears reasonable to assume that if The Supreme Court was being asked to determine the same question with parties who had obtained a divorce in England and Wales, the outcome would have been exactly the same.
We asked Senior Associate Solicitor Stuart Barton for his some expert insight into the above ruling –
- If divorce proceedings are issued in another jurisdiction (such as Pakistan), parties must be alive to the fact that financial matters arising from that divorce, may well not be resolved within that jurisdiction. In this scenario, parties would be wise to seek prompt legal advice from lawyers who work within that jurisdiction and also to consider whether an application under the Matrimonial and Family Proceedings Act 1984 (as made by the wife above) should be made promptly.
- Where there is a potential choice of jurisdiction in respect of where divorce proceedings should be issued, issuing divorce proceedings in England and Wales may often be the best choice for many individuals who are seeking to resolve financial matters arising from their divorce.
- Where there are substantive financial matters to be resolved from any divorce, it remains a sensible position for many individuals to not finalise their divorce until those financial matters have been completely resolved. Divorce automatically ends many rights in respect of pensions and inheritance for a couple who were previously married. The wife’s downfall in the above case largely stemmed from the fact that as she was already divorced, her ability to pursue claims against her deceased husband’s estate was already compromised.
- Whilst it is tempting to leave the resolution of financial matters to a later date once a divorce is concluded, this approach is risky and above-all, usually makes the process far more difficult in the long-run. Events such as death, remarriage, cohabitation, new children of the family and inheritances can all be a potential spanner in the works. Such cases can be enormously expensive and time-consuming to resolve. For most couples seeking a divorce, it is generally far better to resolve financial matters at the time of their divorce.
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