Financial provision claim upon divorce cannot proceed if a party dies, UKSC rules

The UK Supreme Court (UKSC) has ruled that financial provision claim proceedings under the Matrimonial and Family Proceedings Act 1984 cannot proceed once one of the parties to that claim dies.

Unger and another (in substitution for Hasan) (Appellants) v Ul-Hasan (deceased) and another (Respondents) [2023] UKSC 22 saw the Court unanimously reject an appeal for financial relief following the divorce and deaths of both parties.

The Court heard that Ms Hasan and Mr Ul–Hasan married in Pakistan in 1981 before separating in 2006. Mr Ul–Hasan obtained a divorce in Pakistan in 2012. Ms Hasan’s case was that, during the parties’ marriage, they accumulated significant wealth. In August 2017, Ms Hasan obtained leave to bring proceedings for financial provision under the 1984 Act. In January 2021, before Ms Hasan’s claim could be adjudicated, Mr Ul–Hasan died. Ms Hasan sought permission to pursue her claim for financial provision against Mr Ul–Hasan’s estate.

On 2nd July 2021, Mostyn J refused Ms Hasan’s application for permission to pursue her claim. The Court pointed out that Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 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.

However, the judge considered that he was bound by Court of Appeal authority (Sugden v Sugden [1957] P 120) to the effect that a claim for financial provision under the 1984 Act was not a cause of action for the purposes of Section 1 of the 1934 Act.

Accordingly, Ms Hasan could not pursue her claim against Mr Ul-Hasan’s estate. However, Mostyn J also thought that – although he was bound by it – the Court of Appeal authority was wrongly decided.

He accordingly granted Ms Hasan a certificate pursuant to Section 12(1) of the Administration of Justice Act 1969 granting permission for Ms Hasan to make a “leapfrog” appeal directly to the Supreme Court. Since permission to appeal was granted, Ms Hasan died and her appeal was continued by personal representatives of her estate.

There were accordingly two issues before the Supreme Court. The first was whether the rights under the 1984 Act – read with the Matrimonial Causes Act 1973 – were personal rights which could only be adjudicated between living parties so that, on the death of the husband, the wife could not pursue her claim for financial relief against the husband’s estate. The second 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 found that, as on their true construction, the statutory provisions in the 1984 Act and the 1973 Act create personal rights and obligations which can only be adjudicated between living parties, so the first issue was determined in favour of the respondents and the appeal was dismissed.

The UKSC added that the second issue as to 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 s1(1) of the 1934 Act does not arise for determination. However, if on their true construction, the statutory provisions in the 1984 and 1973 Acts had created rights and obligations which did not end on the death of the husband, then a claim for financial relief would be a cause of action within the meaning of the 1934 Act.

Industry reaction

“Today’s judgment is disappointing for former spouses,” said Deborah Jeff, Head of Family Law at specialist London law firm, Simkins:

“The least appropriate outcome for both parties is for the costs already invested in matrimonial litigation to be thrown away and fresh proceedings needing to be commenced against the estate.

At a time when the family and civil courts are already beyond their maximum capacity and there is heightened criticism of legal costs of litigation, this decision exacerbates those very real challenges.

The reality will be a prolonged process, and therefore greater financial and emotional costs for both parties. Only the lawyers will win from this decision, not the families living the outcome of it”.

Flora Harragin, Partner, Farrer & Co, commented:

“[Today’s ruling] means that a surviving party will need to consider making a claim against the deceased’s estate under the potentially more limiting route of the Inheritance Act 1975, provided that their former spouse was domiciled in England and Wales when he or she died. If not, then the surviving party will not be able to make a claim against the deceased’s estate, making this a significant ruling for parties whose former spouses are domiciled abroad.”

Rebecca Christie, family law senior associate at UK law firm Fladgate, said:

“The court felt that a major change to the law would be required before it was permissible to allow proceedings to continue after the death of one of the parties to the marriage, not only for matrimonial claims of this nature but also for other areas of law including inheritance and bankruptcy. It is therefore a matter for Parliament to deal with and not the Judiciary.

It was acknowledged by the Supreme Court that Mostyn J’s judgment in the High Court, was a ‘magisterial and potentially seminal judgment’, in which Mostyn concluded that although he was bound by the prior decision of the Court of Appeal in Sugden v Sugden [1957] P 120, it no longer sat comfortably with the modern law surrounding matrimonial property and family relationships on divorce as these have changed.

Given the Supreme Court have indicated the law needs reform on this issue, we hope the Law Commission decides to take up the cause.”