Death ends everything – including Divorce!
Last week the Supreme Court held that a Wife could not continue her financial claims against her Husband because he died whilst they were having a divorce dispute. The Wife’s claims for financial relief on divorce were therefore rejected.
The parties in the case concerned were Nafisa Hasan (Wife) and Mahmud Ul Hasan (Husband) – Unger & Anor v Ul-Hasan (deceased) & Anor  UKSC 22 (28 June 2023).
There were disclosed assets in excess of £7m.
1981 Parties marry
2006 Parties separate
2012 Parties divorce in Pakistan
August 2017 Wife applies to the Family Division of the High Court for financial relief following an overseas divorce
2019 Court proceedings delayed due to the pandemic
Jan 2021 Husband dies in Dubai, weeks before a hearing
July 2021 Wife’s application is refused
October 2022 Five High Court judges consider case and rule against the Wife
June 2023 Supreme Court hears the case and rejects the Wife’s claims
Upon the Husband’s death, the Wife applied for permission to pursue her claim after his death, against his estate, as a significant wealth had been accumulated during the marriage. The question considered by the court was whether her matrimonial claim could survive the death of the Husband.
The Wife’s application was refused based on the existing law and a previous decision made in 1957, which states that a financial claim during a marriage or after divorce expires with the death of the respondent. But the judge thought that previous decision ought to be challenged and granted the Wife permission to go the Supreme Court and appeal the decision. But the Supreme Court also rejected the Wife’s claim.
When making a financial order on divorce, the court’s primary concern is to look at each party’s needs to assess what the appropriate financial split might be. Where a party has died, they clearly have no future needs. Consequently, this would impact the division on divorce. But it all very much depends on when the death has occurred. In some cases, where there is a death after a financial order has been made, it can lead to the order being set aside based on the change in parties’ circumstances.
However, in this case, the death occurred before a financial order was made. Once a party has died, it is not possible to proceed with the divorce and consequently any financial claims arising from it.
If the deceased dies domiciled in England and Wales then the surviving spouse can make a claim under the Inheritance (Provision for Family Dependants) Act 1975. The problem in Nafisa Hasan’s case was that her former Husband was domiciled abroad.
To complicate matters, Nafisa Hasan, also died during the proceedings before a financial order was made and was prevented from continuing her claim. Therefore she was not able to receive her entitlement due from the marriage and leave it to her estate in accordance with her wishes. Her entitlement would have been distributed to the beneficiaries of her former Husband’s estate instead.
This case highlights the implications for international clients where spouses or former spouses are domiciled abroad.
It also highlights the need to consider what would happen in circumstances where a party dies before a financial order is made, particularly as the Office for National Statistics reports that the rate of divorce for older couples is on the rise.
This case has led to calls for legal reform, but until then, it is safe to say that death really does end everything!
If you would like to discuss any of the issues raised in this article, or need advice about a divorce or civil partnership dissolution, please do not hesitate to contact our Family Department on 020 7625 6003 or Priya Dhokia (Head of Family & Private Wealth) by email at email@example.com