A former husband died three weeks before a court was due to decide his former wife’s financial claim following their overseas divorce. Could the hearing go ahead against his estate? The answer depended first on the power to make a matrimonial order. The general legislation about claims surviving a death could only matter if that power still existed.
The claim left undecided at death
The former spouses married and divorced in Pakistan. The divorce was recognised in England and Wales. In 2017 the wife obtained permission under Part III of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief.
Part III lets a court make financial provision or property adjustment orders following a recognised overseas divorce. The former spouses disputed the extent of the husband’s assets. No order dividing them had been made when he died.
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The husband was domiciled in Pakistan. That mattered because the separate English legislation providing for dependants after death required the deceased to have been domiciled in England and Wales. If her Part III application ended, the wife could not use the inheritance legislation to make a claim here.
On 2 July 2021 Mostyn J dismissed the application. He considered that the claim was a cause of action which survived under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, but held that Sugden v Sugden [1957] P 120 bound him to treat it as ending on the husband’s death. He certified a leapfrog appeal, and the Supreme Court gave permission to appeal directly. The wife died on 5 May 2022. Her personal representatives were substituted as appellants and continued the appeal against the executor.
The question of construction came first
Lord Stephens, with whom Lord Hodge, Lord Hamblen and Lord Burrows agreed, applied the approach in Barder v Barder [1988] AC 20. There is no general rule that proceedings simply abate on death. The question is whether the particular further proceedings can still be taken. That depends on their nature and on the true construction of the legislation. The 1934 Act arises only if the statutes permit proceedings after death.
Why these rights were personal
Earlier decisions had consistently understood matrimonial legislation as creating rights exercisable between living spouses. A court could not make a fresh maintenance or property adjustment order against an estate merely because the application had been started during the parties’ lifetimes.
Lord Stephens accepted that some older statements about financial claims not being causes of action cannot now be supported. A former spouse is entitled to a fair outcome, not merely to hope that discretion will be exercised favourably. That modern understanding did not alter the separate point of construction. Parliament passed the 1973, 1975 and 1984 Acts against the established view that these rights are personal. A departure from that view would require clear words.
The relationship with inheritance legislation
Parliament had specifically addressed the death of a former spouse in the Inheritance (Provision for Family and Dependants) Act 1975. Section 14 made limited provision where someone died within twelve months of the divorce and no financial order had been made. It did so through an inheritance claim, with its own conditions.
The 1975 Act originally did not extend to a person divorced overseas. Part III of the 1984 Act amended it so that such a person could seek family provision on the same terms as someone divorced in England and Wales. Lord Stephens regarded that amendment as a powerful indication that the other provisions of the 1984 Act create only personal rights. Otherwise the amendment would have been unnecessary.
The opposite reading would also have created two routes to relief after death, time limits different from the six-month period under section 4 of the 1975 Act, and a means of avoiding the requirement that the deceased died domiciled in England and Wales. The Court preferred the construction which avoided those consequences.
Read alone, the wording gave strong rather than conclusive indications; in this legal context, Lord Stephens found them conclusive. Section 12 allows “either party to the marriage” to apply. It does not refer to an estate, representative, heir or successor, and it concerns a marriage dissolved by proceedings rather than ended by death. Similar language had already been construed as requiring both spouses to remain alive.
A narrow exception
Mostyn J had pointed to cases in which an unexpected death led a court to reopen a financial order. Barder permits leave to appeal out of time where a new event invalidates the basis of an order and specified conditions are met. In some later cases the court has remade the order despite a spouse’s death.
The remaining injustice
Lord Leggatt, with whom Lord Hodge, Lord Hamblen and Lord Burrows also agreed, agreed that the appeal had to fail, but identified the resulting defect. An award made before death may stand, whereas death shortly before judgment extinguishes the claim. Mostyn J had described that difference as illogical, arbitrary and capable of great injustice, and Lord Leggatt agreed.
Lord Leggatt considered two older explanations no longer tenable. A financial-order claim is now a right to a fair share, not a mere hope, and is capable in principle of being a cause of action under the 1934 Act. The sharing principle also does not logically end on death in the way an obligation of maintenance during joint lives does. The decisive obstacle is the meaning of Part III and its limited interaction with the Inheritance Act. Removing that obstacle would require policy choices across both regimes, which only Parliament can make.
Verdict: The Court unanimously dismissed the appeal. The undecided matrimonial claim could not continue against the husband’s estate. The Court did not have to decide whether such a claim was a cause of action under the 1934 Act. It identified the potential unfairness of the timing of death and left reform to Parliament.
Source: Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023] UKSC 22
