Unger and another (in substitution for Hasan) v Ul-Hasan (Deceased) and another

Heard on 20 October 2022

Lord Stephens ( with whomLord Hodge, Lord HamblenandLord Burrowsagree):

The first issue in this appeal is whether on the true construction of the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”) read with the Matrimonial Causes Act 1973 (“the 1973 Act”), the power of a court in England and Wales to order financial relief after an overseas divorce can only be exercised as between living parties to a former marriage. If the court does have the power to order financial relief despite the death of one of the parties to the marriage, then the second issue is whether a claim for financial relief under the 1984 Act is a cause of action which survives against the estate of a deceased spouse under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”).

This appeal concerns a wife's application under section 12(1) of the 1984 Act for financial relief in England and Wales after an overseas divorce in Pakistan. On such an application, under Part III and pursuant to section 17 of the 1984 Act, the court may make any one or more of the orders which it could make under Part II of the 1973 Act if a decree of divorce in respect of the marriage had been granted in England and Wales. That means the court is able to make orders including any of the financial provision orders mentioned in section 23(1) of the 1973 Act or any of the property adjustment orders mentioned in section 24(1) of the 1973 Act.

The issue in this appeal arises because on 18 January 2021, some three weeks prior to the final hearing to determine the Wife's application, the Husband, then aged 81 and domiciled in Pakistan, died in Dubai. The Wife seeks to proceed with her application against the Husband's estate. On behalf of the Husband's estate, it is said that the Wife's rights under the 1984 Act are personal rights which only enable orders to be made as between living parties to a former marriage. Accordingly, the Wife's right to enforce the personal obligations of the Husband ended with his death and cannot be pursued against his estate. Accordingly, the issue in this appeal is whether, where one of the parties to an application under Part III of the 1984 Act for financial relief has died, further proceedings can or cannot be taken.

Mostyn J in giving a magisterial and potentially seminal judgment, [2021] EWHC 1791 (Fam); [2022] Fam 1, stated at para 53 that he was convinced that the Wife's unadjudicated claim for financial relief against the Husband was a cause of action vested in her and subsisting against him such that on the Husband's death the Wife's claim survived against his estate under section 1(1) of the 1934 Act.Section 1(1), as amended and in so far as relevant provides:

“(1) …, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation.”

On the basis that the Wife's claim survived her Husband's death under section 1(1) of the 1934 Act, the judge considered that, unless he was constrained by authority, the Wife's unadjudicated Part III claim under the 1984 Act could be continued against the Husband's estate. However, the judge decided, at para 23, that he was bound by the Court of Appeal decision in Sugden v Sugden[1957] P 120 and therefore he was obliged to find that the Wife's claim for financial relief expired with the death of the Husband even though he considered the decision in Sugden was wrong. Accordingly, he was compelled to, and did, dismiss the Wife's application for financial relief. The judge also considered that the Court of Appeal would be bound by the decision in Sugden such that it was appropriate to grant a certificate under section 12(1) of the Administration of Justice Act 1969 enabling an application to be made to this court for leave to appeal directly from the High Court to the Supreme Court.

On 12 April 2022, the Supreme Court granted permission to appeal directly from the High Court to this court.

Before addressing the issues in this appeal, it is appropriate to say something about the evolution of principles in relation to matrimonial property and as to the changes which have occurred in relation to the recognition of different family relationships between individuals.

The principles underpinning how the property of the parties to a marriage should be divided on divorce are a world apart from those which applied historically. In 1857, when the Divorce Court was established, a woman could not even own her own property: on marriage everything she owned (apart from household goods) became her husband's. Pending divorce or after divorce, the power of the court was restricted to ordering a husband to pay maintenance to his wife. Currently, the power of the court to order financial relief on divorce is contained in the 1973 Act. That Act confers on the court wide discretionary powers over all the property of the parties to a marriage in order to achieve an outcome as fair as possible in all the circumstances. However, the discretionary nature of the power does not mean a party to a marriage is not entitled to demand an outcome as of right. A claim for financial relief under the 1973 Act does not amount to a mere hope depending on the contingency that discretion will be exercised in the claimant's favour. Rather the judicial discretion is guided by the principle that a former spouse or a civil partner is entitled to a fair outcome. As Lord Nicholls of Birkenhead stated in Miller v Miller [2006] 2 AC 618 at para 9, “[each] party to a marriage is entitled to a fair share of the available property” (emphasis in original). Thorpe LJ in Hill v Haines[2008] Ch 412, para 57 stated that a spouse “in bringing her claim for ancillary relief does not come as a suppliant but as one seeking the quantification of her entitlement”. Munby LJ in Richardson v Richardson [2011] EWCA Civ 79 at para 19 identified the wife as having “earned her share” so that she “was entitled to have that recognised by the Family Division” (emphasis added). It is no longer appropriate to state, as Denning LJ stated in Sugden v Sugden at page 135, that “[in the Divorce Court] there is no right to maintenance, …, or to a secured provision, or the like, until the court makes an order directing it”. It is also no longer appropriate to question, as Ormrod J did in D'Este v D'Este[1973] Fam 55 at page 59, whether the rights created by matrimonial causes legislation are “rightly called ‘rights’…”.

How individuals choose to obtain legal recognition of their relationships has also changed significantly since 1857. The Civil Partnership Act 2004 created the concept of a civil partnership, which was extended to opposite sex couples following the decision of this court in R (Steinfield) v Secretary of State for International Development[2018] UKSC 32, [2020] AC 1 and subsequent amendments to the Civil Partnership Act 2004. Both same-sex and opposite-sex couples are now permitted to marry. As this case concerns a husband and a wife, those terms are used in this judgment although applications for financial relief under the 1973 Act will not always concern a husband, or indeed a wife.

A summary of the factual background is that Nafisa Hasan (“the Wife”) married Mahmud Ul-Hasan (“the Husband”) in Pakistan on 4 September 1981. They went on to have a long marriage. There is one child of their marriage, Iman Hasan, and another child of the Wife who was treated as a child of the family, Adeela Unger, née Qureshi. Richard Sebastian Francis de Unger is married to Adeela Unger.

The Wife said that the Husband generated significant wealth during the marriage. This wealth included a property in London, bought in 1998 to be a home for the parties and a base for their children.

The Wife and the Husband separated in 2006 and the Husband obtained a divorce in Pakistan on 10 January 2012.

On 28 March 2014, the Husband married Lamya Al Shaibah, with whom he subsequently had two children.

The marriage between the Husband and the Wife having been dissolved by means of judicial proceedings in an overseas country and the divorce being recognised as valid in England and Wales, the Wife sought, and on 1 August 2017 was given, leave by Recorder Roberts under section 13(1) of the 1984 Act to apply for an order for financial relief in England and Wales under Part III of that Act. On 11 August 2017, the Wife made that application. In these proceedings and prior to the death of the Husband, Lamya Al Shaibah acted as his litigation friend as he had been diagnosed with dementia.

The Husband's ‘Form E’ Financial Statement, dated 29 December 2019, declared capital of £7 million. The Wife said that she believed the scale of the Husband's wealth was enormous and far in excess of that which he had disclosed. There followed several interlocutory hearings, principally about the Husband's disclosure, and there was delay because of the Covid 19 pandemic. The Wife's application was listed for final hearing on 8 February 2021. However, on 18 January 2021...