Cambridge Family Law Practice

Claims for financial provision following divorce cannot continue if one spouse dies, the Supreme Court has ruled.

Under Part III of the Matrimonial and Family Proceedings Act 1984, a spouse divorced in another country can apply for financial assistance from their former spouse if none was granted by the foreign court or if any money or assets provided are judged to be inadequate.

This case concerned a couple who married in Pakistan in 2001. By 2006 they had separated, but they did not formally divorce until 2012. The wife was unhappy with the terms of the divorce, arguing that her former husband had accumulated substantial assets. In 2017 she made an application in the English courts for a fresh award, under Part III of the Act.

However, events took an unexpected turn in 2017 when her ex-husband died. She applied for permission to continue her claim against her late (former) husband’s estate, but this was refused by the High Court. There Mr Justice Mostyn, in a judgement described by the Supreme Court as “magisterial and potentially seminal”, concluded that the wife’s claim for financial provision should be allowed in theory to proceed against her estate because it arose out of the circumstances of their relationship.

However, explained Supreme Court Justice Lord Stephens:

“… the judge [Mr Justice Mostyn] 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.”

As Mr Justice Mostyn believed the Court of Appeal would reach exactly the same conclusion, he granted the ex-wife permission to take her appeal straight to the Supreme Court, a so-called “leapfrog” appeal.

Before this appeal could be heard, however, the ex-wife herself died, leaving representatives of her estate to attempt to continue the case.

Lord Stephens explained the key issue before the Supreme Court:

“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.”

In a detailed analysis of two pieces of key legislation – the Matrimonial Causes Act 1973 and the Matrimonial and Family Proceedings Act 1984, the Supreme Court concluded that these only created “personal rights” that could not survive the death of the affected parties and then be pursued against their estate.

Lord Stephens concluded:

“There may be a case for reform and that is why I indicated that [Mr Justice Mostyn’]s judgment is potentially seminal. However, reform is plainly for Parliament. It is not for the courts to distort the meaning of the words of the relevant statutes to achieve such a radical reform. “

He continued:

“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. Accordingly, I would dismiss the appeal.”

Gail Marchant-Daisley, one of the partners here at Cambridge Family law Practice, notes: “this is an interesting case, which involves uncommon but not unforeseeable circumstances, especially in a world with an ageing ‘international’ population amongst whom the ‘silver’ divorce is increasingly prevalent. Lord Stephen’s comments support Mr Justice Mostyn’s place in the legal history of England and Wales at the time of his retirement.”

Read the full ruling here.