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In this post, Grant Arnold, a paralegal in the litigation team at CMS, previews the decision awaited from the Supreme Court in Unger and Anor (in substitution for Hasan) v Ul-Hasan (deceased) and Anor.

Factual Background

Ms Hasan and Mr Ul-Hasan married in Pakistan in 1981. The parties separated in 2006, before the husband obtained a divorce in Pakistan in 2012. Over the course of the marriage, Ms Hasan contends that the couple accumulated significant wealth.

In August 2017, Ms Hasan was given leave to bring proceedings for financial provision under the Matrimonial and Family Proceedings Act 1984, Pt III (“Pt III”) providing that, in certain circumstances, an English court can grant financial provision for a spouse following an overseas divorce. However, in January 2021, Mr Ul-Hasan died before Ms Hasan’s application could be decided. The decisive question for the court therefore centred on whether Ms Hasan’s unadjudicated claim under Pt III survived her husband’s death and could be continued against his estate.

The Decision of the High Court

Ms Hasan’s argument was that she was not bound by the authorities under the Matrimonial Causes Act 1973, Pt II (“Pt II”), nor those under the Inheritance (Provision for Family and Dependants) Act 1975, which hold that financial claims made during marriage or following divorce expire if either party has died before adjudication. As these authorities deal with domestic divorces relating to different statutes, Ms Hasan contended that the court was free to adopt a different approach under Pt III, for which the question had never previously been considered. It was, she claimed, a “blank canvas” for Mostyn J to decide.

On 2 July 2021, Mostyn J dismissed the application. It was observed that “Section 17 of the 1984 Act imports all the powers under ss.23 and 24 of the 1973 Act”, and further, that “Section 18(3) requires the court to exercise those powers in accordance with the terms of s.25 of the 1973 Act.” As such, the jurisprudence was held to be equally applicable as between claims made under Pt II, following a domestic divorce, and those under Pt III, following an overseas divorce, and to suggest otherwise, Mostyn J notes, would be the “height of artifice”.

With respect to the relevant authorities, Mostyn J acknowledged that the court was bound by the Court of Appeal decision in Sugden v Sugden [1957] P 120, whereby it was held that claims for ancillary relief were only enforceable post-death in circumstances where an effective order was already issued.

However, although Mostyn J was bound, he firmly disagreed with Sugden and set out his reasoning on three principal fronts:    

  • Based on a proper interpretation of the Law Reform (Miscellaneous Provisions) Act 1934, s1(1) claims for ancillary relief should be recognised as “causes of action” capable of subsisting post-death;
  • If the law permits certain types of claims to subsist post-death, such as civil claims in contract and tort, it is unclear why claims for ancillary relief are prohibited given that they are often more concrete and less speculative in nature;
  • The inconsistent approach between unadjudicated cases, and those in which the appeal courts’ exercise their discretion to either affirm, set-aside, or vary financial remedy orders where the party has died shortly after they’ve made the order.

On those bases, Mostyn J permitted either party to make a leapfrog application for leave to appeal to the Supreme Court pursuant to the Administration of Justice Act 1969, s.12(1).

Comment

It is now for the Supreme Court to decide whether they are persuaded by Mostyn J’s judgment. If in agreement, this would have a significant impact on the scope of divorce litigation where a party dies whilst proceedings are ongoing. Arguably, this opens the door to a financial claim being brought against an ex-spouse’s estate under the Matrimonial Causes Act 1973, rather than the potentially narrower route under the Inheritance Act 1975. As a matter of general public importance, it will be interesting to see what the Supreme Court decides.