In Mr Justice Mostyn – An Appreciation on His Forthcoming Retirement [2023] FRJ 77 I referred more than once to his important decision in Hasan v Ul-Hasan, decd and another [2021] EWHC 1791 (Fam), [2022] Fam 1, [2022] 1 FLR 1033. I said that he had followed the proper approach, playing by the ‘rules of the game’ and loyally applying the rules of stare decisis in following decisions by which he was bound, albeit, as I might have added, they were decisions which he gave powerful reasons for saying no longer represented the law. The outcome, as we all know, was that he gave a certificate for a ‘leap-frog’ appeal to the Supreme Court.

The long-awaited judgments of the Supreme Court were handed down on 28 June 2023: Unger and another v Ul-Hasan (deceased) and another [2023] UKSC 22. By then my Appreciation had gone to press, but I cannot let it pass without adding a few further words.

I do not take up time describing and discussing the Supreme Court’s decision. That essential task is a matter for others. Here I need only record that there were two issues in the appeal:

(1) Whether on the true construction of the Matrimonial and Family Proceedings Act 1984, read with the Matrimonial Causes Act 1973, 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.

(2) If the court does have the power to order financial relief despite the death of one of the parties to the marriage, 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.

Freed from the fetters of what he recognised was authority binding on him, Mostyn would have answered these questions as follows: (1) No; (2) Yes. The Supreme Court answered each question in the affirmative and accordingly dismissed the appeal.

Here, and consistently with the Appreciation, I need to focus on what the Supreme Court had to say about Mostyn’s judgment.

Lord Stephens (para 4), with whom Lord Hodge, Lord Hamblen and Lord Burrows agreed, lauded Mostyn as having given “a magisterial and potentially seminal judgment”. Elaborating this, he said (para 101):

‘There may be a case for reform and that is why I indicated that Mostyn J’s judgment is potentially seminal. However, reform is plainly for Parliament.’

Lord Leggatt, concurring, gave a judgment with which Lord Hodge, Lord Hamblen and Lord Burrows agreed. For present purposes it is most illuminating. He began his judgment (para 104) with this:

‘as we are disappointing the hope of Mostyn J that his decision would be overturned on appeal, I wish to add some observations about the defect in the law which his important judgment has exposed.’

Contrasting the different outcomes depending upon whether a spouse has died just after the application was heard or, as in the present case, shortly before, Lord Leggatt observed (para 109) that:

‘Mostyn J described the difference in outcome if the claim cannot survive in this situation as “illogical, arbitrary and capable of meting out great injustice” … I agree.’

Elaborating (para 110) he added:

‘The extinction of a financial order claim upon the death of either party prevents the court from making a fair division of the matrimonial assets. The consequence is that one party’s estate potentially makes an unfair gain at the expense of the other’s.’

For Lord Leggatt, the ‘decisive point’ (paragraph 134) was the interplay between the Matrimonial and Family Proceedings Act 1984 and the Inheritance (Provision for Family and Dependants) Act 1975.

This is the supreme irony of the litigation, for Mostyn had not been taken to the 1975 Act and to the amendment to the 1975 Act made by the 1984 Act. His decision, which he had hoped would be overturned, was thus in the final analysis upheld on the basis of a point which had not been argued before him. And what if the point as articulated by Lord Leggatt had indeed been taken? One can only speculate as to what Mostyn would have decided and whether, indeed, the case would ever have got to the Supreme Court. Be that as it may, we must be grateful indeed to have three such powerful judgments.

We can only hope that the Law Commission will consider these judgments as part of its current review of financial remedies law and recommend appropriate legislation to remedy the great injustices which this sobering litigation has so prominently exposed.

That, however, is for another day. My immediate purpose is to draw attention to the remarkable encomium to Mostyn’s legal prowess which has emerged, even if only in his last days on the Bench, from the highest tribunal. It is, if I may be permitted to say so, a most proper, a most well-merited and a most timely tribute which, coming from the demi-gods, lesser mortals would do well to appreciate.