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legal reform in this field is needed

Expatriate Law sets Supreme Court precedent: money claims on divorce cease if spouse dies

Expatriate Law sets Supreme Court precedent: money claims on divorce cease if spouse dies


The Supreme Court dismissed the appellant's argument that a party to a marriage can pursue a claim for financial relief during or post divorce under the Matrimonial and Family Proceedings Act 1984 Act and the Matrimonial Causes Act 1973, even after the death of the other party.

The Supreme Court judgment in the case of Unger and another (in substitution for Hasan) (Appellants) v Ul-Hasan (deceased) and another (Respondents) [2023] UKSC 22 has been handed down. This is the first financial remedy case in the Supreme Court in three years. Byron James of Expatriate Law acted pro bono for the successful Respondents alongside counsel Tim Amos KC, Joe Rainer (QEB chambers) and Andrjez Bojarski (36 Family Chambers).

The Supreme Court considered this would involve major reform that would significantly change long-established principles, raising policy questions concerning succession and insolvency laws.

The Supreme Court accepted that there may be a case for reform, but that it is the responsibility of Parliament to enact such changes rather than the courts distorting the meaning of statutes.  Therefore, the power to order financial relief after a divorce or overseas divorce only applies to living parties. The relevant statutory provisions create rights and obligations that can only be resolved between living parties.

Expatriate Law are tremendously grateful to barristers Tim Amos KC, Andrzej Bojarski and Joseph Rainer (of QEB and 36 Family) for their amazing work on this case which was carried out on a Pro Bono basis.

Alexandra Tribe, Managing Partner at Expatriate Law says: “Our firm’s success in this case has decided a legal principle that financial claims arising from a marriage do not survive the death of a spouse. Pro bono cases such as these, with considerable time and expertise given by leading international family lawyers and counsel are important to push change and this case has highlighted that legal reform in this field is needed.”

Byron James, Partner at Expatriate Law says: “The significance of this decision is in part explained by the rarity with which the Supreme Court accepts appeals regarding divorce cases (this being the first in the last three years) and with the unusual and interesting subject matter: can you still divorce someone even though they have died? The Supreme Court accepted there is a problem with the current law, that if someone with all the assets dies mid-proceedings, this can create an injustice for the left behind spouse. But ultimately as problematic as this might be, it has been left for Parliament to resolve and not the Supreme Court, as we - the legal team for the respondent - successfully argued”

Andrjez Bojarski of 36 Family says: “The Supreme Court decision is important because, although it does not for now change the law, it highlights areas which may require reform.  The Court has rightly recognised, as we argued, that changing the law in this area would have potentially significant effects not only on family law but also on the law of inheritance and succession, and also in insolvency law.  Those are matters which need to be carefully thought through because there could be very unwelcome and unexpected consequences.  The judgment may be timely in view of the Law Commission just embarking on a wholesale review of financial remedies law.  I would be surprised if the issues raised by this case do not now feature in that review.  I would not expect much if anything to change until the Law Commission reports, but there is clearly the potential for momentous changes to come.  That is no doubt why Lord Stephens described Mr Justice Mostyn’s first instance decision as ‘potentially seminal’.”