Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another

A court may grant financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 after an overseas divorce only while both former spouses are alive. The statutory rights and obligations are personal and cannot be pursued against either spouse’s estate.

A modern financial-order claim is a cause of action capable in principle of surviving death under the Law Reform (Miscellaneous Provisions) Act 1934. That principle cannot overcome the jurisdictional restriction imposed by the matrimonial legislation. A limited exception permits an appellate court, after a qualifying supervening event, to reconsider an order already made. Any broader reform requires legislation coordinated with the statutory regime governing family provision on death.

Following a divorce in Pakistan, the wife obtained leave to seek financial relief in England and Wales under Part III of the Matrimonial and Family Proceedings Act 1984. Her husband died before the final hearing. She sought to continue the application against his estate.

Mostyn J held that the claim was a cause of action capable of surviving under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, but considered himself bound by Sugden v Sugden and dismissed the application: [2021] EWHC 1791 (Fam); [2022] Fam 1. He certified a direct appeal. The wife subsequently died, and her personal representatives continued the appeal against the executor of the husband’s estate.

The central question was whether Part III proceedings could continue after one party’s death. A second question about statutory survival arose only if the matrimonial legislation permitted such proceedings.

1. Appeal dismissed unanimously. Lord Stephens delivered the leading judgment, with which Lord Hodge, Lord Hamblen and Lord Burrows agreed. Lord Leggatt concurred, with the same three Justices agreeing.

2. The correct approach derived from Barder v Barder [1988] AC 20. There is no general rule that a divorce suit abates upon a party’s death. The court must identify the further proceedings sought, construe the governing legislation or order, and consider section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 only if necessary.

3. Part III of the Matrimonial and Family Proceedings Act 1984, read with the Matrimonial Causes Act 1973, authorises financial relief only between living former spouses. Sections 12, 16 and 17 use language directed to parties personally and contemplate orders against living parties. They contain no provision permitting an order against an estate.

4. This construction was confirmed by the long-established understanding of matrimonial legislation and by the interaction between the matrimonial statutes and the Inheritance (Provision for Family and Dependants) Act 1975. Parliament specifically extended the latter regime to overseas divorces, subject to restrictions concerning domicile, maintenance and time. Allowing Part III claims against estates would duplicate and circumvent that carefully limited regime.

5. A discrete exception applies where a financial order has already been made and a qualifying supervening event justifies an appeal under the Barder principles. After setting aside the order, an appellate court may determine what order ought originally to have been made despite a spouse’s intervening death. That exception does not permit an unadjudicated claim to continue.

6. Lord Leggatt explained that modern financial-order claims are rights, rather than mere hopes. They are therefore causes of action capable in principle of surviving death under the 1934 Act. The sharing principle may remain relevant after death even though needs-based relief may not. Nevertheless, Part III withholds jurisdiction once either spouse has died. The section 1(1) survival question therefore did not arise for determination. Reform was for Parliament.

1. United Kingdom Supreme Court: The direct appeal was dismissed unanimously: [2023] UKSC 22.
2. High Court, Family Division: Mostyn J held that the unadjudicated claim was capable of surviving under the Law Reform (Miscellaneous Provisions) Act 1934, but dismissed it because he was bound by Sugden v Sugden. He certified a direct appeal under section 12(1) of the Administration of Justice Act 1969: [2021] EWHC 1791 (Fam); [2022] Fam 1.