Financial provision following divorce does not survive husband's death, rules EWHC

Monday, 05 July 2021
An unadjudicated claim against a woman’s now-dead ex-husband under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) cannot be continued against his estate, according to the England and Wales High Court (EWHC).
House divide

Nafisa Hasan and Mahmud Ul-Hasan married in Pakistan in 1981 and separated in 2006. Mahmud obtained a divorce in Pakistan in 2012 and Nafisa says that large sums of money were accumulated during the long marriage but were not disclosed to the courts. In August 2017, she brought proceedings under Part III MFPA 1984 to obtain a financial remedy following an overseas divorce. Various hearings have since been held, but Mahmud died in January 2021 before any adjudication was made.

Apparently this situation has never arisen before in a Part III claim, although there are several previous judgments to the effect that claims under Part II of the Matrimonial Causes Act 1973 do not survive the death of the spouse against whom they are made. These include the England and Wales Court of Appeal's (EWCA’s) judgments in Sugden v Sugden (1957) and Harb v King Fahd Bin Abdul Aziz (2006) and the England and Wales Family Court's ruling in D'Este v D'Este (1973).

In the current case, Nafisa argued that the above judgments, and any similar authorities relating to the Inheritance (Provision for Family and Dependants) Act 1975, are not binding as they relate to statutes other than MFPA 1984. Moreover, Mostyn J discovered several inconsistencies during his examination of these cases and others. In particular, he said, there is ‘a clash on the authorities between those cases where the death has occurred shortly before trial and those cases where death has occurred shortly after trial,’ implying that in some of these cases, a cause of action subsisting against a deceased party had survived against his estate.

'That clash is illogical, arbitrary and capable of meting out great injustice,' said Mostyn.

Nevertheless, he decided that he was bound to follow the EWCA’s Sugden judgment and to dismiss Nafisa’s claim against the late Mahmud’s estate. The present EWCA would be similarly bound to follow Sugden, he said (Hasan v Ul-Hasan (Deceased), 2021 EWHC 1791 Fam).

In view of the inconsistencies in the case law, however, Mostyn was satisfied that further leave to appeal should be granted to Nafisa, if necessary by a leapfrog application to the UK Supreme Court. 'There is a point of law of general public importance involved which relates wholly or mainly to the construction of an enactment, which has been fully argued in the proceedings before me and which has been fully considered in my judgment', he said.

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