Till death us do part

Unger v Ul-Hasan

Mrs Hasan and Mr Ul-Hasan married in Pakistan in 1981 and divorced there in 2012. Hasan was subsequently given leave to bring financial proceedings, following an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984 (the 1984 Act). Ul-Hasan died before the claim could be determined and Hasan sought to continue her claim against his estate.

At first instance, Justice Mostyn considered he was bound by England and Wales Court of Appeal authority (Sugden v Sugden)[1] to find that a financial claim on divorce expires with the death of the respondent. His view, however, was that the Court of Appeal was wrong and that Hasan’s claim was a cause of action surviving against the husband’s estate under s.1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.

Mostyn J therefore permitted a leapfrog appeal to the UK Supreme Court (the Supreme Court).

The primary issue for the Supreme Court was whether the provisions of Part III of the 1984 Act, read with the Matrimonial Causes Act 1973 (the 1973 Act), meant that the Supreme Court’s power to order financial relief could only be exercised as between living parties to a former marriage.

In concluding that it was, the Supreme Court considered historical judgments dealing with earlier legislation. These judgments considered that the statutory rights and obligations were personal to the parties and that financial orders on divorce could only be made between living parties. The 1973 Act and Part III of the 1984 Act had been enacted in the context of these decisions and using the same terminology.

The Supreme Court further noted that s.14(1) of the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) made special provision for a former spouse whose financial remedy proceedings had been frustrated by the death of the other spouse within 12 months of the final divorce order. If the claim for financial remedy survived the death of the respondent then there would be no need for s.14(1).

Given the above, the Supreme Court concluded that permitting financial remedy proceedings to continue post-death would be a major reform involving radical change to long-established principles and would be a matter for parliament.

An exception

The courts have occasionally made provision for a spouse after the death of the other, ostensibly under the 1973 Act. In Barder v Barder,[2] the court ordered that the matrimonial home be transferred to the wife for the benefit of her and the children. Shortly afterwards, she killed the children before ending her own life. The husband appealed out of time.

The House of Lords considered that the jurisdiction to entertain an appeal out of time by one party to a divorce did not lapse on the death of the other. The fundamental basis of the order had been undermined by the subsequent events and the original order for transfer of the home was set aside. However, in subsequent decisions (and applying the Barder principles) the appellate court has not only set aside the original order after death of a spouse but also made a new order taking into account the facts known at the date of reassessment on the basis of the principles set out in the 1973 Act. The ability to make such a fresh order is unclear given the decision in Ul-Hasan and the Supreme Court considered the Barder line of authorities to be a ‘discrete but limited exception’ to the general rule that the 1973 Act creates personal rights that end with the death of a party to a marriage.

The 1975 Act

The outcome of the Supreme Court’s judgment in Ul-Hasan is that the only real remedy for the surviving claimant following the death of their ex-spouse is a claim under s.14 of the 1975 Act, which as noted in Ul-Hasan specifically envisioned and provided for this scenario.

The primary difficulty with this outcome is that significantly fewer individuals have standing to bring a claim under the 1975 Act compared to the 1973 Act, primarily because:

• claims can only be brought under the 1975 Act if the deceased died domiciled in England and Wales; and
• s.14 only applies to individuals whose ex-spouse died within 12 months of the final divorce order.

Requirement for the deceased ex-spouse to be domiciled in England and Wales

Section 1(1) of the 1975 Act provides that claims can only be brought against the estate of an individual who died domiciled in England and Wales.

If the respondent spouse died domiciled abroad, then there is no recourse for the surviving claimant spouse. This occurred in Ul-Hasan as the husband was Pakistani so the wife could not bring a claim under the 1975 Act and therefore had no recourse when her existing claim did not survive.

Many individuals are therefore left without any remedy.

Requirement for the death to have occurred within 12 months of final divorce order

Section 14 only permits a claim to be brought if the former spouse has died within 12 months of the final divorce order being made.

Case law is generally silent on this time limit; however, the wording of s.14 suggests that, unlike the general limitation period for 1975 Act claims (which the court has power to excuse), there is no mechanism to extend the 12-month limit.

Many individuals with pending 1973 Act proceedings may be unable to use s.14 to bring a claim following the death of their ex-spouse, despite said spouse being domiciled in England and Wales.

If the ex-spouse was still maintaining those individuals at the time of their death, then it may be possible for them to claim as a maintained person under the 1975 Act. However, such claims are limited to maintenance provision and so would likely result in a lower award than a claim brought under s.14.

A case for reform

The Law Commission of England and Wales recently announced a review of the law on financial remedy on divorce. However, it has not suggested it will consider the status of financial remedy applications after death or any potential amendments to the 1975 Act.

However, the facts of Ul-Hasan illustrate some of the difficulties of the current approach. If an ex-spouse passes away before a financial remedy order is made, a new claim must be commenced from scratch under the 1975 Act, with all the attendant costs, resources and additional court time, assuming that the surviving claimant can overcome the inherent obstacles to bringing such a claim as set out above.

One solution might be that, where a financial remedy application has been made but not yet decided, the Family Division of the England and Wales High Court could retain jurisdiction to deal with the claim despite the death of one of the parties. This would permit applicants to continue proceedings that had already commenced but preserve the present position where financial remedy proceedings were not live. It would also bring the Barder line of cases within the overall approach.

This might be attractive from a family law point of view and is unlikely to stray too far into the purview of the 1975 Act, which already contains some mechanisms for family courts to be able to exclude future 1975 Act claims as part of financial proceedings.

Alternatively, the 1975 Act could be reformed to expand the category of individuals with standing to bring a claim. The least controversial reform would be to amend s.14, which, as drafted, already necessitates that financial remedy proceedings have not been determined. The prescriptive time limit between the decree absolute and the date of death could therefore be removed without facilitating duplicate claims, better reflecting the current realities of financial remedy proceedings.