In the case of Unger and another (in substitution for Hasan) v Ul-Hasan (deceased and another) [2023] UKSC 22, the Supreme Court rendered its decision. This was an appeal from Hasan v Ul-Hasan (Deceased) & Anor [2021] EWHC 1791 (Fam) Judge Mostyn J.’s decision.
This case is notable due to its connection with two fundamental principles:
– Initially, it is possible to petition the court for financial relief after an international divorce under specific conditions; and
- Secondly, the other party is precluded from continuing their divorce action in the event of the death of a party to the action before its conclusion.
The Information we know from the Divorce Proceedings
Mr Hasan and Mrs Hasan completed their divorce in Pakistan in 2012. Mrs Hasan subsequently petitioned the English courts for financial relief, asserting that the divorce proceedings transpired outside of England and were therefore governed by the provisions of the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”). Subject to certain stringent criteria, the 1984 Act permits the courts of England and Wales, as well as Scotland, to issue orders for financial provision in the event of an overseas divorce. In contrast to Scotland, England & Wales have distinct criteria. Notably, financial provision after an overseas divorce cannot be obtained in Scotland until five years have passed since the overseas divorce was granted; therefore, as is the case in many situations, it is prudent to seek advice as soon as possible.
Sadly, Mr Hasan passed away before the application’s final determination. Mrs Hasan passed away just before the Supreme Court hearing of the appeal for the case. The personal representative of Mrs Hasan’s estate and the executor of Mr. Hasan’s estate proceeded with the action.
The Verdict
The majority opinion of the Supreme Court recognised that judicial discretion must be applied to guarantee an equitable resolution for all parties involved. The situation in England and Wales is comparable to Scots law in this regard. The principles of “fairness” constitute the foundation of the divorce financial provision legislation. Despite the inherent injustice that may result from a divorce action being stayed following the demise of one party, the court determined that Mrs Hasan’s estate had exhausted all options in this particular case.
If my Spouse Dies during Divorce Proceedings, what steps should I take?
“Prior rights” or “Legal rights” may be given to the surviving spouse in Scotland in the absence of any other testamentary provision to that effect.
In addition, payments from life insurance policies and annuities held by the deceased may be made to the benefit of the spouse.
Therefore, it is imperative that clients a) maintain current wills and b) promptly seek legal counsel when necessary.
