In 2023 the Supreme Court confirmed that if a spouse dies before a financial order is finalised in a divorce case the spouse seeking relief cannot pursue the claim against the estate of the deceased. The case, Unger v Ul Hasan (deceased) had an unusual set of facts with both spouses dying before the final decision was reached.

Unger v Ul-Hasan (deceased) 2023

The couple married in 1981 and a Pakistani divorce was obtained in 1981. The wife applied for financial relief in England. She was able to do so because the Pakistani divorce was recognised in the UK.

Shortly before the final financial hearing the husband died, and the wife sought to pursue her claim against the estate of her deceased former husband. Before the wife’s appeal could be heard she died, and her daughter replaced her as a party to the claim.

Looking back over a succession of cases decided since the 19th century the court was clear that the wife’s claim could not continue. Matrimonial law is understood to create personal rights that don’t survive the death of a party to the marriage. To change this long-established position, parliament would have to introduce new legislation – it is not something that the courts can do of their own volition.

Have You Received A Final Order of Divorce?

It’s important to note that the Ul Hasan case involved a case where the divorce was finalised in Pakistan. The wife was able to apply for financial relief under the rules applicable to overseas divorces that are valid in the UK.

If you are involved in domestic divorce proceedings, you are legally married until you have received a final order of divorce (formerly a decree absolute). If your spouse dies during proceedings (i.e. before the final order) you are technically married and will have all the rights of a surviving spouse, including your rights under the rules of intestacy.

Comment

On the face of it the outcome in Ul Hasan may seem unfair. And indeed, the injustice to which the application of the rules can give rise to was acknowledged by the judge at the original trial who gave permission for the wife to appeal directly to the Supreme Court.

At Brookman we’ve seen increasing numbers of divorce among older couples so it may well be that a similar case comes before the court again in the near future. In the Ul-Hasan case the claimants have indicated that they will continue to fight for financial relief from the husband’s estate. Legislation mentioned in the judgment included the Inheritance (Provision for Family and Dependants) Act, 1975 and this may well be one avenue that could be explored. Finally the case also highlights the very limited application of the Barder principle when it comes to changing financial orders in general.

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