Unger & Anor v Ul-Hasan (deceased) & Anor [2023] UKSC 22

A wife sought financial relief in England after an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984. The husband died before the final hearing. The Supreme Court held that the power to order financial relief after overseas divorce can only be exercised between living parties, dismissing the appeal.

Facts

Nafisa Hasan (the Wife) and Mahmud Ul-Hasan (the Husband) married in Pakistan in 1981 and divorced there in 2012. In 2017, the Wife was granted leave to apply for financial relief in England under Part III of the Matrimonial and Family Proceedings Act 1984. The Husband declared capital of £7 million, though the Wife believed this substantially understated his wealth. The final hearing was scheduled for February 2021, but the Husband died three weeks beforehand. The Wife sought to continue her claim against his estate. The Wife subsequently died before the Supreme Court hearing, and both estates were represented in the appeal.

Procedural History

Mostyn J dismissed the Wife’s application, holding he was bound by Court of Appeal authority in Sugden v Sugden to find that the claim expired on the Husband’s death, despite considering that decision wrong. He granted a leapfrog certificate for direct appeal to the Supreme Court.

Issues

1. Whether on the true construction of the Matrimonial and Family Proceedings Act 1984 read with the Matrimonial Causes Act 1973, the power to order financial relief after an overseas divorce can only be exercised between living parties to a former marriage.

2. If the court has such power despite death, whether a claim for financial relief under the 1984 Act survives against the estate of a deceased spouse under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.

Judgment

The Proper Approach

Lord Stephens, delivering the main judgment, applied the approach from Barder v Barder [1988] AC 20. Lord Brandon had identified that the real question in such cases is whether, where one party has died, further proceedings can or cannot be taken. This depends on the nature of the proceedings sought and the true construction of the relevant statutory provisions.

Statutory Construction

The Court examined judicial decisions dating back to the 19th century which consistently construed matrimonial legislation as creating personal rights ending with death. Lord Stephens stated:

I consider that several judicial decisions since the mid-19th century have consistently construed matrimonial legislation as creating personal rights and obligations which end with the death of a party to the marriage, and cannot be pursued against the deceased’s estate.

Interplay with Inheritance Legislation

The Court found the amendments made by section 25 of the 1984 Act to the Inheritance (Provision for Family and Dependants) Act 1975 were particularly significant. Lord Leggatt explained:

What this shows is that Parliament chose in enacting Part III to give only a very limited right to pursue a claim for financial provision following an overseas divorce after a party to the marriage dies. This right is limited to a claim under the Inheritance Act if certain conditions are met. It would be inconsistent with that legislative choice to interpret Part III as authorising the court to make a financial order under Part III in this situation.

Modern Understanding of Financial Claims

The Court acknowledged the evolution in understanding financial claims on divorce. Lord Stephens noted:

A party to a marriage is entitled to demand an outcome as of right. A claim for financial relief under the 1973 Act does not amount to a mere hope depending on the contingency that discretion will be exercised in the claimant’s favour.

Lord Leggatt agreed that such claims now constitute causes of action in principle, but the statutory scheme precluded their survival.

Implications

The Court recognised the potential injustice of the current law but held that reform was a matter for Parliament. Lord Stephens stated:

The appellant’s submission that a party to a marriage can continue a claim under the 1984 Act read with the 1973 Act, despite the death of the other party to the marriage, would, in my judgment, be a major reform involving radical change to long-established principles. Furthermore, the reform would involve questions of policy including its impact on the law of succession and potentially also on the law of insolvency.

Lord Leggatt described the current outcome as ‘illogical, arbitrary and capable of meting out great injustice’ but concluded that only Parliament could address the complex interplay between matrimonial and inheritance legislation required for reform.

Verdict: Appeal dismissed. On the true construction of the Matrimonial and Family Proceedings Act 1984 and the Matrimonial Causes Act 1973, 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. The claim could not be continued against the deceased husband’s estate.

Source: Unger & Anor v Ul-Hasan (deceased) & Anor [2023] UKSC 22