The court unanimously dismissed the appeal in Unger & anor (in substitution for Hasan) v Ul-Hasan (deceased) & anor [2023] UKSC 22. It involved a wife’s application for financial relief in England and Wales after an overseas divorce in Pakistan. Three weeks before the final hearing to determine the application, the husband, who was domiciled in Pakistan, died in Dubai. The wife sought to proceed. The husband’s estate argued the wife’s rights were personal rights which could only apply between living parties to a former marriage.
Alex Carruthers, partner at Hughes Fowler Carruthers, said: ‘The question posed by the first instance judge—do both parties in a marriage have to be alive for there to be a divorce settlement?—has been answered.
‘Yes they do. Death ends everything, including one’s claims arising during the marriage. The Supreme Court has put to bed any suggestion that financial claims in a divorce outlive the parties.’
Under current law, applications for financial remedy against a deceased spouse must be made under the Inheritance Act 1975. Following Mr Ul-Hasan’s death, however, Mr Justice Mostyn escalated the case to the Supreme Court on the basis of a different Act, the Law Reform Act 1934, disagreeing with the previous decision of the Court of Appeal to grant Ms Hasan’s claim.
Jeremy Abraham, partner at Dawson Cornwell, representing Ms Hasan, said the court had acknowledged the injustice to Ms Hasan and passed the task of remedying that to Parliament.
He said: ‘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.
‘From a technical perspective, and obiter, a financial claim would be a cause of action (our primary contention) were it not for the specific limitations imposed by the drafting of the relevant 73, 75 and 84 Acts, placing it outside of the 34 Act umbrella. Also, from a technical viewpoint the UKSC hasn’t done much of a job tackling the Barder line of authorities other than labelling that “… a discrete but limited exception”.
‘All in all a pragmatic response to the perceived problems of the interrelation between the family legislation and the Inheritance Act that applies on death, whilst permitting Barder claims to continue.’
Deborah Jeff, head of family law at Simkins, called the judgment ‘disappointing for former spouses’.
‘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 at Farrer & Co, said the case had significant implications for international couples whose former spouses are domiciled abroad. She said the ruling ‘has closed the door to the possibility of an applicant pursuing a claim for financial relief after an overseas divorce following the death of their former spouse
‘This 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.’
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