Judges: Lord Hodge (Deputy President), Lord Hamblen, Lord Leggatt, Lord Burrows, Lord Stephens. Also on National Archives: https://caselaw.nationalarchives.gov.uk/uksc/2023/22.

Summary

The Supreme Court has unanimously dismissed the appeal brought by the wife, Nafisa Hasan (‘the Wife’), against the magisterial and potentially seminal judgment of Mostyn J in Hasan v Ul-Hasan (Deceased) & Anor [2021] EWHC 1791 (Fam), that her un-adjudicated claim under Part III of the Matrimonial and Family Proceedings Act 1984 (‘the 1984 Act’) did not survive the death of the husband, Mahmud Ul-Hassan (‘the Husband’), and thus cannot be continued against his estate.

This was a ‘leapfrog’ appeal, Mostyn J having granted a certificate enabling an application to be made for leave to appeal directly from the High Court to the Supreme Court, which was granted.

A summary of the first instance decision can be found here: https://financialremediesjournal.com/content/hasan-v-ul-hasan-deceased-anor-2021-ewhc-1791-fam.8f59423332414681964c064b503b9a98.htm

The appeal

The real question on appeal was 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.

There were two issues before the Supreme Court:

1. The first was whether the rights under the 1984 Act read with the Matrimonial Causes Act 1973 (‘the 1973 Act’), were personal rights which could only be adjudicated between living parties so that, on the death of the Husband, the Wife could not pursue her claim for financial relief against his estate;
2. The second was 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’).

The Supreme Court’s judgment

Lord Stephens gave the lead judgment (with which Lord Hodge, Lord Hamblen and Lord Burrows agreed).

Before addressing the issues in the appeal, the court noted that the principles surrounding matrimonial property and family relationships were now a far cry from those which applied historically. A claim for financial relief under the 1973 Act could not be regarded as a mere hope that discretion would 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.

Applying the principles in Barder v Caluori [1988] AC 20, the real question on appeal was whether, where one of the parties to an application for financial relief under the 1984 Act had died, further proceedings could be taken. In answering the question, the first matter was to identify the nature of the further proceedings – here, a continuation of the financial relief claim. The second matter was to determine whether, on the true construction of the relevant statutory provisions, the right to apply for financial relief can only be adjudicated between living parties.

If, on their true construction, the statutory provisions in the 1984 and 1973 Acts create personal rights and obligations which can only be adjudicated between living parties, then the 1934 Act cause of action issue does not arise.

However, if, on their true construction, the rights and obligations under the 1984 and 1973 Acts do not end with the death of a party to the marriage, then the answer to the 1934 Act cause of action issue would be relatively straightforward. A party to a marriage would be entitled to demand an outcome as of right. Judicial decisions, insofar as they suggested that a claim for financial relief was not a cause of action within the meaning of the 1934 Act, cannot now be supported.

On the first issue, Lord Stephens concluded that on the true construction of the 1984 Act, read with the 1973 Act, the rights to apply for financial relief are personal rights and obligations which can only be adjudicated between living parties. In order to arrive at this true construction, one had to consider the legal context and judicial decisions prior to and at the time the 1973 and 1984 Acts were passed, together with the legal context when the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’) was passed. It was also appropriate to consider relevant Law Commission reports.

There was a long-established legal understanding, clear from judicial decisions, that rights against one’s spouse are personal only and do not survive the death of either spouse. It was against this contextual background that the words of the 1973 and 1984 Acts had to be interpreted. If a purpose of the statutes was to depart from that settled understanding, one would have expected there to be clear words to that effect.

This was also supported by the 1975 Act. Special provision was required for a former spouse prevented from obtaining a share of the family assets in matrimonial proceedings by the death of the other spouse because, in accordance with the orthodox understanding, the supervening death of the other spouse would prevent a court making an order for financial provision in matrimonial proceedings brought or continued against the deceased spouse’s estate. The Law Commission reports which led to the 1975 Act supported this conclusion.

This statutory construction also avoids the duplication which would otherwise occur by creating two different routes to secure financial relief following the death of a spouse.

To allow proceedings to continue after the death of a party to the marriage would require major reform, involving radical change to long-established principles, and involve questions of policy including its impact on the law of succession and potentially on the law of insolvency.

Barder v Caluori created a discrete but limited exception to the general rule that the 1973 Act creates personal rights and obligations which end with the death of a party to the marriage. This limited exception did not amount to a sufficient basis on which to undertake a radical change to the construction of matrimonial legislation.

Reform was plainly a matter for Parliament and it was not for the courts to distort the meaning of the words of the relevant statutes.

As the first issue had been determined in favour of the respondents, the issue as to whether a claim for financial relief under the 1984 Act amounted to a cause of action which survived against the estate of a deceased spouse under section 1(1) of the 1934 Act did not arise for determination.

Lord Leggatt gave a concurring judgment (with which Lord Hodge, Lord Hamblen and Lord Burrows agreed). Lord Leggatt, noting that the court would be disappointing the hope of Mostyn J that his decision would be overturned on appeal, added observations about the defect in the law which Mostyn J’s judgment had exposed.

Lord Leggatt further noted that the complex interplay between Part III of the 1984 Act (and the 1973 Act) on the one hand, and the 1975 Act on the other, meant that reform aimed at remedying the injustice arising from the limited ability to make financial orders after the death of either party to the marriage would require an overall view to be taken of both legislative regimes and of how they do, and should, interact. Only Parliament would be competent to undertake that task.