The estate of a wife has lost its claim for financial relief against the estate of her former husband. Unger v Ul-Hasan has generated much commentary about the current law on financial claims after the death of an ex-spouse. Unger had the potential to inflict ‘radical change’ on financial remedies but has failed to produce such results.
The procedural irregularity of the case was the first indicator of its potential importance, skipping from the High Court straight to the Supreme Court. It also endured the death of the original parties involved, with their respective estates taking on the burden.
The case centred on a wife (Nafisha Hasan) who sought financial provisions from her former husband (Mahmud Ul-Hasan). The couple divorced in 2012 in Pakistan. The wife applied for financial remedies in 2017. In 2019 she disputed the financial statement of her husband. During the investigation, the former husband died.
The law was clear, financial remedy claims must be made to the living. The only option for the wife was under the Inheritance (Provision for Family and Dependants) Act 1975, which allows for former spouses to make a claim against the dead where it is reasonable. Unfortunately, in this case, the husband was not in residence in England and Wales at the time of death. Therefore, the wife was ineligible for such a claim. Accordingly, it was her only option to apply for financial relief under the Matrimonial and Family Proceedings Act 1984, which she did in 2021.
After her claim was dismissed, the Supreme Court allowed her application for appeal. Once there, two questions had to be answered: First, in an overseas marriage, does a court in England and Wales have the power to make a financial relief order if one party is dead? Second, do the statutes allow for a financial relief claim against the dead?
The Supreme Court conducted a thorough analysis of both the existing interpretations of the statutes in the case law and the intentions of Parliament through previous statutory instruments. It concluded there was “a long-established legal understanding that rights against one’s spouse… do not survive the death of either spouse.” Furthermore, it was Parliament’s intention for the statutes to be interpreted in that way, any change would be a “radical reform” that the court should not attempt.
So, what does this mean?
In practice, very little. Although Lord Stephens railed against the “injustice” of the law, the Supreme Courts hands were tied. Instead of enacting “radical change” it has “put to bed any suggestion that financial claims in a divorce outlive the parties.” (According to Alex Carruthers, partner at Hughes Fowler Carruthers, a leading family law firm). Indeed, in upholding the previous case law, the Supreme Court has rightfully given the task of enacting any meaningful change to Parliament. The Hasan estate has promised to ‘continue its fight’: but the wheels of governance turn slowly, and we are unlikely to see much change in the immediate future.
With special thanks to Leah Krishnarayan for researching and preparing this very helpful summary.