Does Death End Everything?

• Published date: 10 August 2023
• Subject Matter: Family and Matrimonial, Divorce, Wills/ Intestacy/ Estate Planning
• Law Firm: Higgs LLP
• Author: Georgia Stott

A recent case - in which the Supreme Court dismissed a woman's appeal for financial relief following the death of her former husband before the final determination - has highlighted the issue that death can end a litigation case, writes Georgia Stott, Senior Associate in the Higgs Dispute Resolution and Litigation team.

Unger & Anor (in substitution for Hasan) v Ul-Hasan (deceased) and Anor [2023] looked at whether an ex-spouse has the right to bring an application for financial relief after having divorced overseas and it also examined whether that right survives the death of one of the parties.

The couple, Mr Ul-Hasan and Mrs Hasan, married in 1981 in Pakistan.

However, their marriage broke down and in 2012 Mr Ul-Hasan divorced his wife. His wife claimed relief on the basis that the divorce was recognised in England and Wales but Mr Ul-Hasan died before proceedings were concluded.

Mrs Hasan tried to continue proceedings against his estate but this was denied on the basis that the court decided that its power to order financial relief after an overseas divorce can only be exercised as between living parties to a former marriage.

It has been said as a result that " death ends everything".

But is that the case?

While it is true that some claims are automatically brought to an end if one party dies, it is not always the case.

It is possible for a spouse to make a claim for provision from the deceased party's estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Every case is considered on its own merits, of course, but if a divorce has not been finalised, a surviving spouse could make a claim for reasonable provision. In such cases, the court takes into account what the survivor may have been awarded in a divorce but is also mindful that one of the parties to the divorce has since died.

If one party to a divorce dies within twelve months from the date on which a divorce order or nullity of marriage order has been made final or a judicial separation order has been made, and certain conditions are met, the court has the power, if it thinks it just to do so, to treat the survivor as a spouse for the purposes of an Inheritance Act claim. But it would be circumstance specific.

However, if parties are divorced and an enforceable agreement is entered into by them which properly excludes claims of this nature, they would not then be able to pursue a claim.

In the Unger & Anor (in substitution for Hasan) v Ul-Hasan (deceased) and Anor [2023]...