It is a truth universally acknowledged that a legal commentator in possession of a Supreme Court judgment in a long running case, must be in want of a reference to Jarndyce v Jarndyce.
That much quoted case created by Charles Dickens was said in Bleak House to drone on such that no man alive knew what the case was actually about. Of relevance to the minds of family lawyers this week, however, was the fact that “Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it.” For the UK Supreme Court handed down judgment on Wednesday in an important Family Law Case, Unger v Ul-Hasan, whereby the Court finalised a financial case upon divorce where the parties to the marriage separated in 2006, divorced in 2012 and had both since died.
More properly the case is titled Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023] UKSC 22, and it is those words in parentheses that were at the root of the dispute and of the court’s determination.
Background
The Matrimonial and Family Proceedings Act 1984, Part III, allows a party in certain circumstances to bring financial proceedings in the court of England and Wales where they have divorced overseas. Mr Ul-Hasan and Mrs Hasan were divorced in Pakistan in 2012, and in 2017 Mrs Hasan was granted permission to bring financial proceedings in London. These proceedings were eventually listed for final hearing in February 2021.
In January 2021, three weeks before that trial, Mr Ul-Hasan died.
As Mr Ul-Hasan was not domiciled within England and Wales when he died, Mrs Hasan had no ability under the Inheritance (Provision for Family and Dependants) Act 1975 to claim against his estate on the grounds that she was not adequately provided for.
Her only option, therefore, was to attempt to continue her unadjudicated financial claims against the estate under the existing Part III proceedings. With marked regret, the High Court judge determined that she could not do so. The court ruled that an unadjudicated claim under Part III proceedings did not survive the death of the other party. Mrs Hasan appealed that decision to the Supreme Court.
In May 2022, three weeks after being granted leave to appeal, Mrs Hasan died.
The case therefore proceeded to determination by the UK Supreme Court as a case continued by the personal representatives of the wife’s estate against the executor of the husband’s estate.
Decision
All five supreme court judges were agreed that the law as it stood allowed only one conclusion – the appeal had to be dismissed. The wording of the statute was clear, and case law was not sufficient to upend it, such that under the 1984 Act (as well as the 1973 Matrimonial Causes Act) the financial claims were personal rights and obligations. Such rights can only be exercised between living parties.
This may perhaps be the obvious solution, but the Supreme Court judges were unanimous in noting that the current law could create injustices. In cases such as that of Mrs Hasan, she was entitled as of right to make substantive claims against her former husband’s wealth; his death immediately removed any such rights entirely.
It is for Parliament and primary legislation to address that injustice. With clear sympathy, the Supreme Court could not allow proceedings such as those brought by Mrs Hasan to continue.
Conclusions
Potential Part III proceedings are complex and require careful legal advice in any circumstance. Where, like Mr and Mrs Hasan, parties are in their 70s and 80s, there is an unambiguous need for matters to be pursued expeditiously. At BH&O we have experience in dealing with all manner of international divorces and financial settlements, but the case of Mrs Hasan shows the need for taking advice early.
Similarly, for divorce proceedings in this jurisdiction, the case reminds practitioners of the interplay between the 1973 Divorce legislation and the 1975 Inheritance rules.
