Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) allows former spouses to apply in England and Wales for financial relief after an overseas divorce, with the leave of the court.
In a High Court judgment dated 2 July 2021 in the case of Hasan v Ul-Hasan (Deceased), 2021 EWHC 1791 Fam, Mostyn J considered whether the wife could continue such an application after the husband’s death.
The parties in the case had married in Pakistan in 1981, separated in 2006 and the husband obtained a divorce in Pakistan in 2012. The wife was given leave to bring Part III proceedings in England in 2017. A number of hearings had taken place but the proceedings were still ongoing when the husband died in January 2021. The wife sought to continue the unadjudicated Part III claim against the husband’s estate following his death.
This scenario has been considered and adjudicated upon many times in cases under Part II of the Matrimonial Causes Act 1973 (“Part II” – “domestic” applications for financial relief for parties to a marriage and children of the family). However, the issue of pursuing an application after the death of the respondent had never before been considered in a Part III case.
Part II cases – the authorities
The main authority is Sugden v Sugden  P 120, in which the husband died while there was an ongoing child maintenance order. The wife sought to make his estate liable to continue the payments but Denning LJ in the Court of Appeal ruled that his estate was not liable. The judge held that the right under the order must have accrued at the time of death, so there would be a “cause of action” for arrears of maintenance already owing, but not for later payments as there was no enforceable right to these at the time of death.
This authority has been followed in several subsequent cases, with the courts taking the view that claims could not be pursued against the respondent’s estate after their death.
Part III cases – Mostyn J’s decision
The former wife’s counsel in Hasan v Ul-Hasan argued at the hearing on 21 June 2021 that the judge was not bound by the authorities under Part II or those under the Inheritance (Provision for Family and Dependants) Act 1975 as they relate to different statutes and that it was therefore a “blank canvas” for Mostyn J to decide. However, the judge disagreed and found that he was bound by the Part II authorities, which he said “unambiguously state that a financial claim made during marriage or following divorce expires with the death of the respondent” and that “this principle applies equally whether the claim proceeds under Part II following a domestic divorce or under Part III following an overseas divorce”.
In reaching his decision, Mostyn J considered the authorities including the case of Sugden and found that he was bound by this.
However, whilst bound by this decision of Denning LJ (and considering that the Court of Appeal was therefore also bound by it), Mostyn J said that he disagreed with the decision and set out in detail his reasoning - effectively taking the view that a claim for ancillary relief is a “cause of action” and so should subsist post-death and identifying inconsistencies between the treatment of appeal cases (such as the very well-known case of Barder v Barder (Calouri intervening)  AC 20, where it was held that an order could be varied after the death of one of the parties and the “section 25 criteria” to be considered when determining the appropriate division of assets applied afresh to the circumstances) and cases which had not yet been adjudicated. “There is therefore 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. That clash is illogical, arbitrary and capable of meting out great injustice.”
Mostyn J therefore proposed to grant a certificate permitting a leapfrog appeal to the Supreme Court, should either party apply for that.
It therefore appears that, at present, a financial claim made on or following a divorce, whether that divorce took place in England and Wales or overseas, will not survive the death of the respondent. However, it will be very interesting to see whether this case progresses and, if so, whether the Supreme Court might take a different view in line with Mostyn J’s reasoning.
"...a financial claim made during marriage or following divorce expires with the death of the respondent... this principle applies equally whether the claim proceeds under Part II following a domestic divorce or under Part III following an overseas divorce" - Mostyn J