Divorce can feel like a death, but what happens if the person you are divorcing actually passes away?

It is often said that going through a divorce is similar to suffering a bereavement. However, what happens if the person you are divorcing actually dies midway through that process?

The case of Hasan v Ul Hasan (Deceased) Anor [2021] EWHC 1791 (Fam) involved a couple from Pakistan. After their separation in 2006, the Husband obtained a divorce in Pakistan in 2012. In the summer of 2017, the Wife brought a claim in England under Part III of the Matrimonial and Family Proceedings Act 1984 (the legislation that permits the Court in certain circumstances to make financial awards following an overseas divorce). The Wife claimed that significant wealth had been accumulated during the course of the marriage and over the following three and a half years litigation took place in the English Courts, focusing primarily on the Husband’s financial disclosure.

However, on 18 January 2021, the Husband (who was 81) died. The Wife (aged 74) argued that she should still be able to pursue her unadjudicated Part III claim notwithstanding the death of her ex-husband.

This kind of financial claim cannot be initiated if the respondent is already dead and the authorities are arguably quite clear that existing but unadjudicated claims of this nature cannot continue after the death of the respondent either. Nonetheless, the Wife argued that as her claim was already in motion it should be permitted to continue.

The case was heard in the Family Division of the High Court in June 2021 before Mostyn J. He reviewed the law and found that he was bound by the Court of Appeal authority in Sugden v Sugden [1957] P 120 and that this financial claim (as with other financial claims brought after divorce) did not survive the death of the respondent.

However, having reached this conclusion at as early as paragraph 23 of his judgment, Mostyn J then spent the remaining 49 paragraphs of his judgment explaining in great detail why he thought the case of Sugden is wrong. He pointed to several reasons why he thought this was the case:

1. He thought that financial relief following divorce constitutes a “cause of action” that endures after the death of the respondent, as is the case with most civil claims;
2. He thought that such claims were less speculative than many other claims that survive the death of the respondent (for example, a personal injury claim) and so it follows that a financial claim following divorce should also survive the respondent’s death; and
3. In various cases involving the Court’s ‘set aside’ jurisdiction, the Court has exercised its statutory discretion after the death of the respondent and so it follows that the substantive claim can also be adjudicated following the respondent’s death

The judge then, most unusually, said that if either party wished to appeal his decision that he would grant permission for a ‘leapfrog’ application to be brought straight to the Supreme Court (on the basis that the Court of Appeal would also be bound by its earlier decision in Sugden).

It remains to be seen whether the Wife will appeal this decision, although given the very strong words of encouragement from the judge and the detailed case he set out in his judgment, it seems likely that she will do so. If so, the matter will come before the Supreme Court in due course. If the Supreme Court agrees with Mostyn J, that decision could have wide ranging ramifications. It would permit a spouse to continue a financial claim against their ex-spouse’s estate and could in theory give rise to an entirely new sub-set of divorce litigation.