Divorce financial provision application cannot continue after death of party

The Supreme Court has decided, in Unger and another (in substitution for Hasan) v Ul-Hasan and another [2023] UKSC 22, that when a party to an application under Part III of the Matrimonial and Family Proceedings Act 1984 dies, further proceedings cannot be taken.

Nafisa Hasan (“the wife”) and Mahmud Ul-Hasan (“the husband”) married in 1981. In 2012 in Pakistan the husband obtained a divorce. The wife applied to the courts in England and Wales for financial relief under section 12(1) of the 1984 Act on the basis that the divorce was an overseas divorce recognised as valid in England and Wales. On her 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. The husband died before the final determination of the wife’s application. Nonetheless, the wife wished to pursue her claim for financial relief against the husband’s estate.

In the High Court, Mostyn J considered that he was bound by the prior decision of the Court of Appeal in Sugden v Sugden [1957] P 120, but would otherwise have held that the wife could continue her claim against the estate of the deceased husband on the basis that the wife’s unadjudicated claim for financial relief was a cause of action vested in her and subsisting against the husband’s estate under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”). He considered that the Court of Appeal authority was incorrect but was binding on him so that he was compelled to and did dismiss the wife’s claim against the estate of the husband.

Mostyn J granted a “leapfrog” certificate enabling an application to be made for leave to appeal directly from the High Court to the Supreme Court which granted that application.

Lord Stephens gave the lead judgment, with which Lord Hodge, Lord Hamblen and Lord Burrows agreed. Lord Stephens’s judgment was based on the true construction of the 1984 Act read with the 1973 Act. He considered that to allow proceedings to continue after the death of a party to the marriage would require a major reform to the law, which is for Parliament. Lord Leggatt gave a concurring judgment, with which Lord Hodge, Lord Hamblen and Lord Burrows agreed. Lord Leggatt added observations about the defect in the law which Mostyn J’s judgment had exposed.

The appeal was dismissed.

For the judgment, click here. For a press summary, click here.