The Supreme Court has confirmed that if a spouse dies before divorcing financial proceedings are concluded, then that claim dies with them and the surviving spouse cannot continue with the claim. At the same time, the Supreme Court has indicated that it believes that the law may need to be reformed.
In Unger and another v Ul-Hasan and another, the Supreme Court upheld a decision by Mostyn J in the High Court that a financial remedy claim does not survive the death of one of the parties. The facts were a little unusually. During the husband and wife’s divorce proceedings, the husband Mr Ul-Hasan died. Mrs Hasan attempted to continue with her divorce financial claim which was now brought against Mr Ul-Hasan’s estate, only for her to then also die and for the claim to then be pursued by her daughter and son-in-law.
The appeal case skipped the Court of Appeal and was sent direct to the Supreme Court who confirmed that the claim could not be pursued where one or both parties to the marriage had ended. The justices held that “Several judicial decisions since the mid 19th century have consistently construed matrimonial legislation as creating personal rights and obligations which end with the death of a party to the marriage, and cannot be pursued against the deceased’s estate. Parliament is presumed to have knowledge of that established orthodox understanding when enacting the [Matrimonial Causes Act] 1973, [Inheritance (Provision for Family and Dependants) Act] 1975, and [Matrimonial and Family Proceedings Act] 1984 Acts.”
It was against the “long-established legal understanding that rights against one’s spouse are personal only and do not survive the death of either spouse, that the words of the 1973, 1975 and 1984 acts must be interpreted”.
Lord Stephens also stated “The appellant’s submission that a party to a marriage can continue a claim under the 1984 Act read with the 1973 Act, despite the death of the other party to the marriage, would, in my judgment, be a major reform involving radical change to long-established principles. Furthermore, the reform would involve questions of policy including its impact on the law of succession and potentially also on the law of insolvency.”
“The power of a court in England and Wales to order financial relief after an overseas divorce can only be exercised as between living parties to a former marriage.”
Normally a spouse who find themselves in the position where their financial claim has to end due to the death of their spouse, would instead bring a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. If the applicant is a surviving spouse or civil partner of the deceased, they can claim at a higher maintenance standard, i.e. whatever is necessary for their maintenance in all of the circumstances. This is significant because with spouses, the court can take into account the standard and style of living and reasonable expectations of the applicant, including what he or she might have expected to get if there had been a divorce, rather than death, which might exceed what they need for their day to day maintenance.
However, Mrs Hasan could not do this as Mr Ul-Hasan was domiciled in Pakistan and had died in the Dubai and IPFDA claims can only be brought where the deceased person dies domiciled in the UK.
The Supreme Court made it clear that there may be a case for reform of the law here, but that “reform is plainly for Parliament. It is not for the courts to distort the meaning of the words of the relevant statutes to achieve such a radical reform”.
More and more people are divorcing much later in life than was once the case, so it is entirely arguable that there is a need for reform here as more people find themselves in this trap, especially perhaps now that we live in times where people are more likely to move abroad.
An unexpected death of one party can cause havoc in a divorce. In many cases the surviving spouse may find that that they suddenly becoming the sole owner of the family home as the parties had held it as joint tenants; the spouse becomes the sole owner of the house by “survivorship”. The deceased spouse’s children and wider family may not be thrilled about that, especially where the surviving spouse is not their parent, as they may have expected to receive the deceased parent’s share of the house when he or she died.
I recall a case early on in my career where my client died very unexpectedly, and his wife claimed that she was now the sole owner of the house as they were joint tenants and the survivorship rule applied. The husband had been advised to consider whether he should sever the joint tenancy by serving the wife with a Notice of Severance, thereby creating a tenancy in common in equal shares and which would have ensured that his interest in the property was inherited by the beneficiaries in his will. However, he did not know that he was ill and he expected to outlive his wife, so he did not sever the joint tenancy .
In that case, we were able to successfully argue that the joint tenancy had been impliedly severed in accordance with the case law in Hunter v Babbage; in our case, the parties had reached a financial agreement that the house would be transferred to the husband, and we were in the process of drawing up a financial consent order when he died. The existence of the agreement, albeit just recorded in solicitor’s letters at that stage, had the effect of severing the joint tenancy and creating a tenancy in common in equal shares. My client’s child therefore inherited his father’s 50% share in the property under the terms of his will. The wife, to her credit, did not seek to challenge that argument.
The way that death affects a pension also causes problems in divorce. Solicitors will advise clients that they should not apply for the final order in the divorce (what used to be known as the Decree Absolute) until after the court has made a financial remedy order. If the order contains a pension sharing order, then it is good practice to delay the application for at least 28 days so that the pension sharing order comes into effect while the parties are still married. This should avoid the danger that one party dies after the final order is made, but before the financial order has been made. If one spouse dies after Final Order, then the other spouse is not a widow or widower, they are an ex-spouse and would not be entitled to a widow’s/widower’s pension, nor can they pursue an application for a pension sharing order as the other spouse has died.
If the final order is made during the 28 day period after the financial order is made and the spouse then dies before the pension sharing has come into effect, it cannot be implemented. As the final order has been made, they are not a widow or widower and will not receive a widow’s/widower’s pension.
Of course, the final order can be obtained by the applicant in the divorce without the need for the respondent’s consent. Therefore, consideration ay need to be given as to whether the respondent should apply to the court for an order under section 10 (2) Matrimonial Causes Act 1973 for the court to consider his or her financial provision after the divorce; this has the effect of preventing the final order from being made. Such applications were only possible in two years’ or five years’ separation divorces under the old divorce law prior to 5 April 2022, but now are potentially possible in all new-style no-fault divorce applications. (In a joint divorce application, an applicant seeking the final order on their own must give two weeks’ notice to the other applicant, which gives them an opportunity to apply under section 10 (2).)
Applications under section 10 (2) were very rare under the old divorce law. When the new law was introduced in 2022, we were told that such applications would become much more common, but thus far that does not seems to have happened, perhaps because many people undertake their own divorce applications and simply do not realise the importance of doing it.
In my experience, most people do not expect to die before either divorces are final, but of course people can and sometimes do die unexpectedly. To some extent we can try to plan ahead wherever possible just in case the worst happens, but as the Hasan family discovered, there is a limit to what the court can do to assist them.
(Note: In this blog I have referred to spouses and divorce for the sake of simplicity, but the law applies equally to civil partners and dissolution applications).
15 July 2023
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