UK Divorce Case Ruling – When Death Intrudes: Reactions

Tom Burroughes Group Editor London 3 July 2023

UK Divorce Case Ruling – When Death Intrudes: Reactions

Controversy hinges around whether a party to a marriage can pursue financial relief during, or after divorce even if a spouse has died. The issue may force the UK parliament to consider new legislation. Here are reactions.

A ruling by the UK Supreme Court against a claim to pursue financial relief during or after divorce when a spouse has died has prompted a flurry of commentary. 

The court’s judgement in the case of Unger and another (in substitution for Hasan) (Appellants) v Ul-Hasan (deceased) and another (Respondents) [2023] UKSC 22 was handed down last week. 

The court dismissed the appellant's argument that a party to a marriage can pursue a claim for financial relief during or post-divorce under the Matrimonial and Family Proceedings Act 1984 Act and the Matrimonial Causes Act 1973, even after the death of the other party.

The court argued that such a claim would involve major reform that would significantly change long-established principles, raising policy questions concerning succession and insolvency laws.

Byron James, partner at Expatriate Law, acted pro bono for the successful respondents alongside counsel Tim Amos KC, Joe Rainer (QEB chambers) and Andrjez Bojarski (36 Family Chambers).

“Our firm’s success in this case has decided a legal principle that financial claims arising from a marriage do not survive the death of a spouse,” Alexandra Tribe, managing partner at Expatriate Law, said in a statement late last week. “Pro bono cases such as these, with considerable time and expertise given by leading international family lawyers and counsel are important to push change and this case has highlighted that legal reform in this field is needed.”

James said: “The significance of this decision is in part explained by the rarity with which the Supreme Court accepts appeals regarding divorce cases (this being the first in the last three years) and with the unusual and interesting subject matter: can you still divorce someone even though they have died?”

“The Supreme Court accepted there is a problem with the current law, that if someone with all the assets dies mid-proceedings, this can create an injustice for the left behind spouse. But ultimately, as problematic as this might be, it has been left for parliament to resolve and not the Supreme Court, as we – the legal team for the respondent – successfully argued,” James added.

The case is an another example of how, particularly when large amounts of money are involved, matrimonial breakdowns, family disputes and tussles about estates, trusts and other entities are a big part of the private client advisory chessboard. This news service tracks a number of issues concerning divorce cases – see articles here and here.

Other reactions
“With today’s [28 June] ruling the Supreme Court has closed the door to the possibility of an applicant pursuing a claim for financial relief after an overseas divorce following the death of their former spouse,” Flora Harragin, partner at law firm Farrer & Co, said. 

“This means that a surviving party will need to consider making a claim against the deceased’s estate under the potentially more limiting route of the Inheritance Act 1975, provided that their former spouse was domiciled in England and Wales when he or she died.”

“If not, then the surviving party will not be able to make a claim against the deceased’s estate, making this a significant ruling for parties whose former spouses are domiciled abroad,” Harrgain said.

“The court felt that a major change to the law would be required before it was permissible to allow proceedings to continue after the death of one of the parties to the marriage, not only for matrimonial claims of this nature but also for other areas of law including inheritance and bankruptcy. It is therefore a matter for parliament to deal with and not the judiciary,” Rebecca Christie, senior associate and specialist family lawyer at UK law firm Fladgate, said. 

 Another lawyer disagreed that the Supreme Court’s decision was wise. 

“This is a disappointing outcome in a case where it appears manifestly unjust for a party to be denied fair and equitable matrimonial provision. This result affirming the current law, could lead to cases where manifestly unjust and unfair outcomes occur where one party is left without access to funds that would have otherwise been available to them if the deceased were still alive,” Katie McCann, managing partner and divorce law expert at HNW family law firm Lowry Legal, said. 

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