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Unger and another v Ul-Hasan (deceased) [2023] UKSC 22 – application for financial remedy cannot continue after the death of the respondent

Posted on 16 October 2023

Ms Hasan had started proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA) after the parties' divorce in Pakistan in 2012. In January 2021, during the course of the financial remedy proceedings, Mr Ul-Hasan died. Ms Hasan sought permission to pursue her financial remedy application against the estate (Mr Hasan had died domiciled in Pakistan, so she couldn't bring an application under the Inheritance Act). Mostyn J refused permission, but considered that Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 (the “1934 Act”) which provides, subject to certain exceptions, that all causes of action subsisting against a person shall survive their death and may be pursued against their estate, should apply. He relied on Barder v Calouri, given that, in that case, the Court of Appeal had been willing to make a fresh order in the ancillary relief after the Barder event, namely the wife's death. He granted her a certificate for a leapfrog appeal. Ms Hasan died before the Supreme Court's decision and the appeal was pursued by her personal representatives.

The Supreme Court identified that the first issue was whether the MFPA 1984, read with the Matrimonial Causes Act (MCA) 1973 meant that the power of a court in England and Wales to order financial relief after an overseas divorce can only be exercised as between living parties to a former marriage. If the court does have the power to order financial relief despite the death of one of the parties to the marriage, then the second issue was 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.
The Court considered that, in contrast to the historic position (e.g. when all a wife could hope for was maintenance from her husband on divorce), a claim for financial remedy does not amount to a mere hope that discretion will be exercised in the claimant's favour, but that a former spouse or civil partner is entitled to a fair outcome. It was therefore no longer appropriate to state, as the Court of Appeal did in Sugden v Sugden [1957] P 120 that there was no right to maintenance or secured provision until the court makes an order directing it. Further, it was no longer appropriate to question whether the rights created by the matrimonial causes legislation are "rightly called 'rights'"

The answer to the first issue was "yes". The court examined a number of historic authorities, decided under previous legislation all of which had considered that financial orders on divorce could only be made between living parties. The 1973 Act (and 1984 Act) had been enacted in the context of these decisions and using the same terminology. The Court also noted that s.14(1) of the Inheritance (Provision for Family and Dependants) Act 1975 made special provision for a former spouse prevented from obtaining a share of the family assets in matrimonial proceedings by the death of the other spouse within 12 months of decree absolute/final divorce order. If, in fact, the claim for a financial remedy survived the respondent, there would be no need for this provision. S.25(2) of Part III of the 1984 Act had amended the Inheritance Act to extend the rights available to a former spouse under the Inheritance Act to a former spouse where the divorce had taken place overseas.

The court further noted that the 1984 Act itself refers to an application by either party to the marriage, with reference to the marriage having been dissolved by means of judicial or other proceedings – there was no mention of the marriage being ended by death. Likewise, the 1973 Act repeatedly refers in s.23 to "either party to the marriage"
The Barder line of authorities created 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. However, this limited exception was not a sufficient basis on which to undertake a radical change to the construction of matrimonial legislation.

To permit a claim to continue despite the death of the other party to the marriage would be a major reform involving radical change to long-established principles and would be a matter for parliament.
If, however, the court had had power to order financial relief despite the death of one of the parties, then the court considered that the claim for financial relief would be a cause of action for the purposes of the 1934 Act. Contrary to some of the older authorities, a claim for financial relief is not a mere "hope" that the court would exercise its discretion, but is a cause of action and would therefore be capable in principle of passing on death by operation of the 1934 Act.

Kate Clark says: The position remains as we have long believed it to be – a claim for a financial remedy cannot continue past a party's death (albeit it might still be possible to get relief if a Barder event occurs). However, the Court was at pains to put to bed the notion that a financial remedy claim is simply inviting the court to utilise its discretion – rather the caselaw has established that the application is to give effect to an entitlement. England and Wales does not operate a matrimonial property regime (in contrast to certain other countries, where a share in matrimonial property exists on death as well as divorce), but the view of the Supreme Court potentially muddies the waters somewhat in that regard.

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