12th July 2023

An injustice in the family world that the Law Commission should look at

Henry Hood

Senior Partner

The recent Supreme Court decision in Unger and another (in substitution for Hasan) v Ul- Hasan [2023] UKSC 22 points to something that, if the Law Commission really is to review the law on financial provision, it should have a look at.

A husband and wife of 25 years divorced in Pakistan. The wife was given leave to bring Part III proceedings here seeking financial provision from her former husband. Five years of tortuous litigation, with many interim hearings - due mainly to the husband’s non-disclosure - were brought to an end three weeks before the final hearing by his untimely death. Can you imagine the frustration?

The husband not being domiciled in this country, and his death coming more than 12 months after their divorce, were both reasons why the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A) could not be employed to make a claim for provision from his estate. Did the wife’s claim for financial relief survive the husband’s death? If not, the wife would be left without any relief whatever.

At first instance, Mostyn J felt himself bound by 1957 Court of Appeal authority (with which he disagreed) to find that the wife’s claim for financial relief was purely personal and therefore went to the grave with either of the parties were they to die before its conclusion.

Clearly anxious for there to be a review of a position which he felt entirely failed to reflect the transformation in spousal claims to financial relief in the period since then, he fast-tracked the case to the Supreme Court (because the Court of Appeal would be hamstrung in the same way he was).

However, much as it clearly had sympathy for the position the wife had found herself in (she too had died by this point), the Supreme Court was not able to find a way around the well-established understanding that claims for financial provision arising on divorce can only be pursued by and against living parties. They held that the terms of the I(PFD)A showed that Parliament had intended that Act to be the only route through which relief could be sought where death had intervened.

The Supreme Court concluded that only parliament could address the injustice enshrined in the courts’ inability to make financial provision orders after where a party has died domiciled outside England and Wales prior to determination of the financial claims arising from their divorce.

This is something that it would be worthwhile for the Law Commission to spend its time on - in contrast (in my opinion) to the law relating to financial provision more generally.