What happens to financial provision when a party dies before the divorce?

The Supreme Court has issued its judgment in Unger and another (in substitution for Hasan) v Ul-Hasan (deceased and another) [2023] UKSC 22. This was an appeal against the decision of Mostyn J in Hasan v Ul-Hasan (Deceased) & Anor [2021] EWHC 1791 (Fam). 

This case is interesting insofar as it touches on two principles:

- Firstly, that in certain circumstances it is possible to apply to the court for financial relief following an overseas divorce; and

- Secondly, that if a party to a divorce action dies prior to the action concluding, the other party cannot continue with their action.

The facts

In 2012 Mr Hasan obtained a divorce from Mrs Hasan in Pakistan. Mrs Hasan then applied for financial relief in the English courts on the basis that the divorce took place overseas and fell within the allowances of the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”). Under the 1984 Act, provision is made for the courts in England & Wales, and in Scotland, to grant orders for financial provision following an overseas divorce, subject to certain strict criteria. The criteria differ between England & Wales and Scotland. It is important to note that, in Scotland, financial provision following overseas divorce can only be sought within five years of the overseas divorce being granted, so, as is true in many circumstances, seeking early advice is important.

Sadly, Mr Hasan died prior to the final determination of the application. Mrs Hasan then also died shortly before the case was appealed to the Supreme Court. The action was continued by the personal representative of Mrs Hasan's estate and the executor of Mr Hasan's estate.

The judgment

It was acknowledged in the Supreme Court's majority judgment that judicial discretion is to be exercised to ensure that each party is entitled to a fair outcome. In that respect, the position in England & Wales is not dissimilar to Scots Law. The concept of "fairness" is at the centre of the legislation on financial provision on divorce. The court concluded, however, that, despite the inherent unfairness which may arise as the result of a divorce action not being permitted to continue post the death of one party, no further action could be taken by Mrs Hasan's estate in this case.

What do I do if my spouse dies prior to divorce?

In Scotland, the surviving spouse may be able to claim "prior rights" or "legal rights" if no other testamentary provision has been made for them.

Spouses may also receive payments from any life insurance policies, or as the beneficiaries of any pensions held by the deceased.

As such, it is crucial that clients a) ensure that their wills are up to date; and b) seek legal advice on an urgent basis when required.