The Supreme Court has unanimously dismissed a wife’s appeal for financial relief against her husband’s estate after he died before the final determination of her application.
Lord Stephens, giving the lead judgment in Unger and anor v Ul-Hasan (deceased) and anor, said ‘major reform involving radical change to long-established principles’ would be necessary to allow a party to a marriage continue a claim despite the death of the other party. This would be a matter for parliament, not for the courts, he said.
Nafisha Hasan and Mahmud Ul-Hasan married in 1981. Ul-Hasan obtained a divorce in Pakistan in 2012. Hasan applied for financial relief on the basis the divorce was recognised as valid in England and Wales. However the husband died in Dubai, aged 81, weeks before the final hearing to determine the application. She sought to proceed with her application against his estate.
The Supreme Court granted permission to appeal directly from the High Court.
Hasan died prior to the Supreme Court appeal. Her daughter and son-in-law substituted her as appellants in the appeal.
The lead judgment, with which Lord Hodge, Lord Hamblen and Lord Burrows agreed, said: ‘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. Parliament is presumed to have knowledge of that established orthodox understanding when enacting the [Matrimonial Causes Act] 1973, [Inheritance (Provision for Family and Dependants) Act] 1975, and [Matrimonial and Family Proceedings Act] 1984 Acts.’
It was against the ‘long-established legal understanding that rights against one’s spouse are personal only and do not survive the death of either spouse, that the words of the 1973, 1975 and 1984 acts must be interpreted’.
Dismissing the appeal, Stephens said: ‘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.
‘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.’
Jeremy Abraham, partner at family firm Dawson Cornwell, which represented Hasan’s estate, said the estate plans to ‘continue its fight’. He said: ‘Whilst dismissing the appeal the UKSC acknowledge that in doing so Mrs Hasan and now her estate have suffered injustice.
‘The UKSC, whilst acknowledging the changed face of family law and society’s expectations, has passed the task of remedying that acknowledged injustice to parliament. Having done all that it can to remedy injustice here, the estate intends to continue its fight to remedy this in other jurisdictions, hoping to find a more just outcome.'
Alex Carruthers, partner at family law firm Hughes Fowler Carruthers, said: ‘Death ends everything, including one’s claims arising during marriage. The Supreme Court has put to bed any suggestion that financial claims in a divorce outlive the parties.’
Tony Roe, partner at Dexter Montague Solicitors, said the wider implications of the judgment were all the more relevant when Office for National Statistics show the rate of divorce for older couples on the rise.
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