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Hasan v Ul Hasan [2021] EWHC 1791 (Fam) – claim under Part III MCA 1973 after death of respondent dismissed but permission for a "leapfrog" appeal granted

Posted on 4 February 2022

Part III of the Matrimonial and Family Proceedings Act 1984 provides that, in certain circumstances, the English court may make financial provision for a spouse following an overseas divorce. The respondent to such a claim died before the application was heard. The respondent's estate, unsurprisingly, took the position that, in light of his death, the applicant could not continue with her application. The applicant attempted to argue that, as the authorities relating to claims for financial relief after death all relate to the position under the Matrimonial Causes Act 1973 (MCA 1973), dealing with domestic divorces, that the court could take a different approach under Part III.

Mostyn J didn't agree, and considered that:

"6. [J]urisprudence unambiguously states that a financial claim made during marriage or following divorce expires with the death of the respondent. In my judgment, this principle applies equally whether the claim proceeds under Part II following a domestic divorce or under Part III following an overseas divorce."

However, the Judge then went on to examine the authorities on claims under MCA 1973 after death and decided that he disagreed with them. He considered that a claim under the Matrimonial Causes Act is one that should be recognised as a cause of action under the Law Reform (Miscellaneous Provisions) Act 1934 (i.e. one that can be continued after the death of the respondent). Although he felt bound to dismiss the application, he stated that, should either party appeal, he would give permission for them to bypass the Court of Appeal and "leapfrog" straight to the Supreme Court, pursuant to s.12 (1) of the Administration of Justice Act 1969.

Kate Clark says: It has long been understood that a financial claim on divorce falls away with the death of a party and cannot continue after one of the parties has died. In this case Mostyn J therefore concluded that he must dismiss the wife's application in circumstances in which her former husband died before her claim for financial provision following an overseas divorce could be adjudicated.

However, although he and the Court of Appeal were bound by the authorities, he considered that the current law is incorrect and that this was a point of general public importance. He therefore made it clear that if either party wished to appeal his decision he would grant permission for an application to be brought straight to the Supreme Court, without having to first go to the Court of Appeal.

Should the wife do so, and the Supreme Court agrees with Mostyn J, this could have significant ramifications in such cases where a party dies during proceedings, and potentially lead to being able to be brought against the estate of a deceased spouse under the Matrimonial Causes Act 1973 (as in a divorce), rather than potentially the much more limited route under the Inheritance Act 1975.

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