Unger and Anor (in substitution for Hasan) v Ul-Hasan (deceased) and Anor – UKSCBlog
17, Oct 2022
Unger and Anor (in substitution for Hasan) v Ul-Hasan (deceased) and Anor – UKSCBlog

On this publish, Grant Arnold, a paralegal within the litigation workforce at CMS, previews the choice awaited from the Supreme Court docket in Unger and Anor (in substitution for Hasan) v Ul-Hasan (deceased) and Anor.

Actual Background

Ms Hasan and Mr Ul-Hasan married in Pakistan in 1981. The events separated in 2006, earlier than the husband obtained a divorce in Pakistan in 2012. Over the course of the wedding, Ms Hasan contends that the couple amassed vital wealth.

In August 2017, Ms Hasan was given depart to deliver proceedings for monetary provision underneath the Matrimonial and Household Proceedings Act 1984, Pt III (“Pt III”) offering that, in sure circumstances, an English court docket can grant monetary provision for a partner following an abroad divorce. Nonetheless, in January 2021, Mr Ul-Hasan died earlier than Ms Hasan’s utility may very well be determined. The decisive query for the court docket subsequently centred on whether or not Ms Hasan’s unadjudicated declare underneath Pt III survived her husband’s dying and may very well be continued in opposition to his property.

The Determination of the Excessive Court docket

Ms Hasan’s argument was that she was not sure by the authorities underneath the Matrimonial Causes Act 1973, Pt II (“Pt II”), nor these underneath the Inheritance (Provision for Household and Dependants) Act 1975, which maintain that monetary claims made throughout marriage or following divorce expire if both celebration has died earlier than adjudication. As these authorities cope with home divorces regarding totally different statutes, Ms Hasan contended that the court docket was free to undertake a distinct strategy underneath Pt III, for which the query had by no means beforehand been thought-about. It was, she claimed, a “clean canvas” for Mostyn J to determine.

On 2 July 2021, Mostyn J dismissed the applying. It was noticed that “Part 17 of the 1984 Act imports all of the powers underneath ss.23 and 24 of the 1973 Act”, and additional, that “Part 18(3) requires the court docket to train these powers in accordance with the phrases of s.25 of the 1973 Act.” As such, the jurisprudence was held to be equally relevant as between claims made underneath Pt II, following a home divorce, and people underneath Pt III, following an abroad divorce, and to recommend in any other case, Mostyn J notes, can be the “top of artifice”.

With respect to the related authorities, Mostyn J acknowledged that the court docket was sure by the Court docket of Enchantment determination in Sugden v Sugden [1957] P 120, whereby it was held that claims for ancillary reduction had been solely enforceable post-death in circumstances the place an efficient order was already issued.

Nonetheless, though Mostyn J was sure, he strongly disagreed with Sugden and set out his reasoning on three principal fronts:

  • Based mostly on a correct interpretation of the Legislation Reform (Miscellaneous Provisions) Act 1934, s1(1) claims for ancillary reduction ought to be acknowledged as “causes of motion” able to subsisting post-death;
  • If the legislation permits sure varieties of claims to subsist post-death, corresponding to civil claims in contract and tort, it’s unclear why claims for ancillary reduction are prohibited provided that they’re usually extra concrete and fewer speculative in nature;
  • The inconsistent strategy between unadjudicated circumstances, and people during which the attraction courts’ train their discretion to both affirm, set-aside, or differ monetary treatment orders the place the celebration has died shortly after they’ve made the order.

On these bases, Mostyn J permitted both celebration to make a leapfrog utility for depart to attraction to the Supreme Court docket pursuant to the Administration of Justice Act 1969, s.12(1).


It’s now for the Supreme Court docket to determine whether or not they’re persuaded by Mostyn J’s judgment. If in settlement, this might have a major affect on the scope of divorce litigation the place a celebration dies while proceedings are ongoing. Arguably, this opens the door to a monetary declare of being introduced in opposition to an ex-spouse’s property underneath the Matrimonial Causes Act 1973, fairly than the possibly narrower route underneath the Inheritance Act 1975. As a matter of normal public significance, it is going to be attention-grabbing to see what the Supreme Court docket decides.