The ruling was made in the case of Nafisa Hasan, who attempted to pursue a claim against the estate of her deceased ex-husband, Mahmud Ul-Hasan. The couple were married in 1981, and divorced in Pakistan in 2012.
Mrs Hasan then lodged a claim for financial relief at the High Court in London (Family Division). The claim was made on the basis that the divorce was recognised as valid in England and Wales as an ‘overseas divorce’. At the time of the claim, Mr Ul-Hasan was still alive. But unfortunately, he passed away before the High Court judge could make a ruling. Eventually though, the High Court ruled against the claimant.
An appeal was made in the Supreme Court, again arguing for a share of what was described as Mr Ul-Hasan’s “enormous wealth”. His ex-wife believed that her former spouse’s estate was actually a lot larger than the £7 million he had declared.
In another tragic twist to the case, Mrs Hasan then passed away – before the Supreme Court could consider her case. Her representatives continued to pursue the case, which was considered by five justices at a hearing in London in October 2022. Ultimately, the Supreme Court justices dismissed the appeal.
Current laws could be reviewed
When declaring the ruling, Justice Lord Leggatt explained that the case had exposed what he described as a “defect” in current laws. He said that the court’s “limited ability to make a financial order after a party to the marriage has died” could lead to injustices in some cases, but could only be remedied by a change in the law by parliament.
"This result, affirming the current law, could lead to cases where manifestly unjust and unfair outcomes occur, where one party is left without access to funds that would have otherwise been available to them if the deceased were still alive.”
Another legal expert, Joanne Radcliff from law firm Brabners, said that this recent ruling effectively closes the door on anyone looking to pursue a divorce settlement after the other party has died – whether or not it causes them to suffer an injustice. But she also said that there could potentially be a change in the law in the future:
“The death of either party typically leads to an end in proceedings under British law and this particular case, which has brought into play more ambiguous overseas legislation, has only served to reinforce that position.
“The fact that this is the first family case to reach the Supreme Court since the pandemic highlights its importance in setting a precedent, so we shouldn’t be surprised to see changes in legislation in the near future to provide greater clarity.”
Need expert legal advice for a complicated family law matter? Get in touch with our trusted Liverpool divorce solicitors here at Tracey Miller Family Law.