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’til death do us part – financial provision when a spouse or former spouse dies

The death of a party to a financial remedy claim brings proceedings to a halt. Where it is known that a party to such proceedings is in such poor health that death may be imminent, there are difficult decisions to be made about how to protect the claim. The rights under a financial order only bind the estate of the deceased if there has been decree absolute, as most orders only take effect on decree absolute.
The Supreme Court ruled unanimously in the 2023 case of Unger and another v Ul-Hasan (deceased) that financial claims on divorce cannot be pursued after the death of one of the spouses. The court upheld the long standing position that the court’s power to order financial relief could only be exercised as between living parties to a former marriage.
The case arose from a married couple who were divorced in Pakistan. The former wife pursued (as she was able to) her financial claims on divorce in England. Before those claims were concluded, the former husband died. The former wife applied to the court for permission to pursue her claim after his death against his estate.
The established view is that a financial claim on divorce is purely personal to the parties involved. The claim could not survive the death of either spouse and could not be pursued against the estate of the deceased. The judge sitting in the lower court had little option but to dismiss the former wife’s claim as the court was bound by a prior decision made in a higher court on this very matter. However, the judge recognised the illogical nature of the conflicting outcomes in prior cases where death occurred shortly before or after trial and granted permission to the former wife to proceed with her appeal by ‘leapfrogging’ to the Supreme Court. In a sad twist, the former wife died shortly afterwards but the court allowed the appeal to be continued by her estate since it involved important points of law since questions had arisen on the continued validity of the established view.
One consideration is that if a spouse dies before concluding financial claims on divorce, the Inheritance (Provision for Family and Dependants) Act 1975 (the NI equivalent being Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979) permits a claim by the surviving spouse against the deceased spouse’s estate. This can also apply even if the spouses were divorced before death.
The Supreme Court confirmed the established view. The Court emphasised the proper construction of the statutory provisions governing financial remedy on divorce and that it was intended by Parliament that financial claims would end on death. To change this would require the government to reform the law.
Cases involving the death of a spouse or former spouse who leave insufficient financial provision for the surviving spouse or former spouse are extremely complex and sensitive. This emphasises the importance of trying to resolve matters in good time as well as appreciating the potential implications of the death of either party for the survivor before financial claims have been finalised. The case emphasises the concerns where a party has ill health and also the importance of obtaining the Decree Absolute without undue delay. Further, the case is also interesting regarding the additional complications which may be faced where a divorce is concluded abroad or an individual is not domiciled in Northern Ireland and illustrates that in these situations it is important to seek legal advice at an early stage.
Our specialist family and matrimonial team has the experience and expertise to support our clients in the most difficult circumstances of this nature.