On this put up, Grant Arnold, a paralegal within the litigation staff at CMS, previews the choice awaited from the Supreme Court docket in Unger and Anor (in substitution for Hasan) v Ul-Hasan (deceased) and Anor.
Ms Hasan and Mr Ul-Hasan married in Pakistan in 1981. The events separated in 2006, earlier than the husband obtained a divorce in Pakistan in 2012. Over the course of the wedding, Ms Hasan contends that the couple amassed vital wealth.
In August 2017, Ms Hasan was given go away to convey proceedings for monetary provision underneath the Matrimonial and Household Proceedings Act 1984, Pt III (“Pt III”) offering that, in sure circumstances, an English court docket can grant monetary provision for a partner following an abroad divorce. Nevertheless, in January 2021, Mr Ul-Hasan died earlier than Ms Hasan’s software could possibly be determined. The decisive query for the court docket due to this fact centred on whether or not Ms Hasan’s unadjudicated declare underneath Pt III survived her husband’s demise and could possibly be continued in opposition to his property.
The Choice of the Excessive Court docket
Ms Hasan’s argument was that she was not certain by the authorities underneath the Matrimonial Causes Act 1973, Pt II (“Pt II”), nor these underneath the Inheritance (Provision for Household and Dependants) Act 1975, which maintain that monetary claims made throughout marriage or following divorce expire if both social gathering has died earlier than adjudication. As these authorities take care of home divorces regarding totally different statutes, Ms Hasan contended that the court docket was free to undertake a distinct method underneath Pt III, for which the query had by no means beforehand been thought of. It was, she claimed, a “clean canvas” for Mostyn J to resolve.
On 2 July 2021, Mostyn J dismissed the appliance. It was noticed that “Part 17 of the 1984 Act imports all of the powers underneath ss.23 and 24 of the 1973 Act”, and additional, that “Part 18(3) requires the court docket to train these powers in accordance with the phrases of s.25 of the 1973 Act.” As such, the jurisprudence was held to be equally relevant as between claims made underneath Pt II, following a home divorce, and people underneath Pt III, following an abroad divorce, and to counsel in any other case, Mostyn J notes, can be the “top of artifice”.
With respect to the related authorities, Mostyn J acknowledged that the court docket was certain by the Court docket of Enchantment choice in Sugden v Sugden  P 120, whereby it was held that claims for ancillary reduction had been solely enforceable post-death in circumstances the place an efficient order was already issued.
Nevertheless, though Mostyn J was certain, he strongly disagreed with Sugden and set out his reasoning on three principal fronts:
- Primarily based on a correct interpretation of the Regulation Reform (Miscellaneous Provisions) Act 1934, s1(1) claims for ancillary reduction needs to be acknowledged as “causes of motion” able to subsisting post-death;
- If the regulation permits sure kinds of claims to subsist post-death, equivalent to civil claims in contract and tort, it’s unclear why claims for ancillary reduction are prohibited provided that they’re typically extra concrete and fewer speculative in nature;
- The inconsistent method between unadjudicated instances, and people by which the enchantment courts’ train their discretion to both affirm, set-aside, or fluctuate monetary treatment orders the place the social gathering has died shortly after they’ve made the order.
On these bases, Mostyn J permitted both social gathering to make a leapfrog software for go away to enchantment to the Supreme Court docket pursuant to the Administration of Justice Act 1969, s.12(1).
It’s now for the Supreme Court docket to resolve whether or not they’re persuaded by Mostyn J’s judgment. If in settlement, this is able to have a big influence on the scope of divorce litigation the place a celebration dies while proceedings are ongoing. Arguably, this opens the door to a monetary declare of being introduced in opposition to an ex-spouse’s property underneath the Matrimonial Causes Act 1973, fairly than the doubtless narrower route underneath the Inheritance Act 1975. As a matter of basic public significance, it will likely be attention-grabbing to see what the Supreme Court docket decides.