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?

A recently reported case involving a couple from Pakistan (Hasan v Ul Hasan (Deceased) Anor [2021] EWHC 1791 (Fam)) addressed this very question. After their separation in 2006, the Husband obtained a divorce in Pakistan in 2012. In the summer of 2017, the Wife brought a financial claim in England following the 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. 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 claim notwithstanding the death of her ex-husband.

The case was heard in the Family Division of the High Court in June 2021 before Mostyn J. The judge considered that he was bound by the previous authorities and that the Wife’s financial claim did not survive the death of the Husband. However, he made very clear that he did not agree with the previous authorities and said he would grant “leapfrog” permission to the Supreme Court if the Wife wished to appeal.

It remains to be seen whether the Wife will appeal this decision, although given the very strong words of encouragement from the judge, 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.

If you would like to read a more detailed analysis of this case you can do so here.