The Supreme Court last week handed down its much-anticipated judgment on the appeal of what Lord Stephens described as a “potentially seminal” High Court decision from Mr Justice Mostyn. The decision (Unger & Anor (in substitution for Hasan) v Ul-Hasan (deceased) and Anor [2023] UKSC 22) looks at an ex-spouse’s right to bring a financial relief application after an overseas divorce and whether that right can survive the death of one of the parties.

In a unanimous finding, the five Supreme Court justice panel held that the English and Welsh Courts do not currently have that power on the true construction of the existing statutory provisions but suggested that “there may be a case for reform” of the law on this issue. 

However, they caveated that by suggesting that the reform needed would be “major” and involve “radical” change to long-established principles and questions of policy including its impact on the law of succession and potentially also on the law of insolvency. It therefore remains to be seen whether Parliament has the appetite to take up this challenge.

However, the Supreme Court’s latest decision highlights the lacuna left to potentially thousands of English and Welsh residents with international links who, like the late Mrs Hasan who was the Appellant in this case, are left with no means to support themselves and no cause of action that can be brought through the English or Welsh courts on their ex-spouse’s death to help them.

London has become known as the “divorce capital of the world”. Part of that reason is because of the claims that can be brought under part III of the Matrimonial and Family Proceedings Act 1984 (“the MFPA”) for financial relief after a divorce that took place outside this jurisdiction. This useful tool allows a party who has received no or inadequate financial provision in a foreign court after a foreign divorce to ask the English and Welsh courts to order a “financial top-up” in cases where there are substantial connections to England and Wales.

In the current case, Mr Ul-Hasan and his wife, Mrs Hasan were married in Pakistan in 1981. They bought a house in London during the marriage with the intention of making it their family home. Their marriage broke down in 2006, and the husband obtained a divorce in Pakistan in 2012, from which insufficient financial provision appears to have been made for the wife. This was despite very significant sums having been accumulated during the course of their long marriage, according to the wife. 

The wife was therefore given leave to bring proceedings under Part III of the MFPA in the English court in August 2017.  This application meant that the court could have made any one or more of the orders which it could make under the 1973 Matrimonial Causes Act if a decree of divorce in respect of the marriage had been granted in England and Wales. However, on 18 January 2021, several weeks before the final hearing to decide the wife’s claim under Part III of the MFPA, the husband died at the age of 81 in Dubai, domiciled in Pakistan. The wife was aged 74 at that point.

As the husband did not die domiciled in England and Wales, it was not open to the wife to apply to the English and Welsh court under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) on the ground that the disposition of the husband’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, was not such as to make reasonable financial provision for her. This is the act that usually steps in in cases where a spouse or ex-spouse dies domiciled in England and Wales but before their financial claim has been adjudicated to offer them financial provision.

However, even in those cases, the provision an ex-spouse would get under the 1975 Act would only cover what is reasonable for their “maintenance” rather than an equal share in the marital assets as they would have on life.

Accordingly, the only route for Mrs Hasan to obtain financial relief in England and Wales was pursuant to the unadjudicated Part III claim under the 1984 Act. That route would only be open to her if her claim survived the death of Mr Ul-Hasan and could be continued against his estate.

Mrs Hasan’s application to decide this point went before Mr Justice Mostyn at first instance. His decision on 21 June 2021 found that he was bound by a previous decision of the Court of Appeal (Sugden v Sugden), which held that claims for financial relief under the MFPA were extinguished on death and could not be pursued against a deceased spouse's estate.

Mostyn J emphasised that he considered that Court of Appeal decision to have been incorrectly decided, but he was nonetheless bound by it. Therefore, when giving his judgement, he allowed Mrs Hasan to “leap-frog” the case right up to the Supreme Court (surpassing the Court of Appeal).

Supreme Court Decision

The Supreme Court analysed the case law and wording of the MFPA and the 1975 Act carefully. They concluded that the right to financial relief under both the MFPA and the Matrimonial Causes Act 1973 are personal rights that are extinguished on death. This is unlike most other causes of action that subsist after a party’s death against their estate. They found that the 1975 Act had been implemented to address what happens after those personal rights for financial relief under the MFPA and the Matrimonial Causes Act 1973 are extinguished but that in this case, the 1975 Act could not help Mrs Hasan as her ex-husband had died domiciled outside of England and Wales.

Lord Leggatt emphasised the injustice that this case had highlighted. Mrs Hasan’s position would have been vastly different had Mr Ul-Hasan died after judgment had been given on the Part III claim but before it was implemented. In that case, Mrs Hasan could have taken the steps required under the order to implement against Mr Ul-Hasan’s estate as a debt of the estate. The extinction of an undecided financial claim upon the death of either party prevents the court from making a fair division of the matrimonial assets. The consequence is that one party’s estate makes an unfair gain at the expense of the other’s.