In this case Mostyn J examines the law relevant to a wife’s application to continue proceedings for financial remedies in circumstances where the respondent husband died before any order was made on her application.
The parties married in Pakistan in 1981 and separated in 2006. The Husband obtained a divorce in Pakistan in 2012. The wife believed significant sums were accumulated during the marriage. In August 2017 the wife was given leave to bring proceedings under Part III of the Matrimonial and Family Proceedings Act 1984, which can enable spouses, in certain circumstances, and when there is a connection to England and Wales, to obtain remedies, including financial remedies, following an overseas divorce. On 18 January 2021, aged 81 the husband died. The wife aged 74 wanted to pursue her application.
The key issue for determination was:
Whether an unadjudicated claim under Part III survives the death of a spouse and can be continued against their estate?
The case was heard on the 21st July 2021 in the Family Division of the High Court before Mostyn J who handed down his judgment on the 2nd July 2021. Counsel for the wife argued that the authorities under Part II of the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependents) Act 1975 do not bind the Court as they relate to different statutes. Therefore, the above issue for determination has never been considered before and the Court has before it a blank canvas. The Judge rejected this, concluding that Part II jurisprudence is clearly applicable to this Part III application, and as such, the preceding House of Lords and Court of Appeal jurisprudence is binding. It, therefore, followed that a financial claim under Part III following an overseas divorce expires with the death of the respondent, much the same as a claim under Part II would following a domestic divorce.
Although Mostyn J announced early on within his judgment that the Court of Appeal case of Sugden v Sugden  P 120 was binding on him , the remainder of the judgment focused on why he thought this decision was wrong. The three key reasons he disagreed with Denning LJ’s judgment are as follows:
“1. A fair textual interpretation of s.1 of the 1934 Act leads to the conclusion that post-divorce ancillary relief is recognised as a cause of action and is not excluded from the scope of the section;
“2. The nature of the claim, especially where it is framed as a sharing claim, is not a mere spes that discretion will be exercised in the claimant’s favour. It is (or may be) a valuable claim, with objective solidity which is in many ways less speculative than a personal injury claim or a claim for an injunction; and
“3. Post-death relief has been awarded following the set-aside of a financial remedy order at the suit of the payer where the payee has died shortly after the making of the order. In this scenario it will be seen that the court, without any inhibition, exercises the statutory discretion under s.25 of the Matrimonial Causes Act 1973. This can only be explained if the right to apply to set aside the order and to seek a full rehearing is a cause of action within the scope of s.1 of the 1934 Act.”
Mostyn J considered the case law which exercised the discretion specified under Part II:
Barder v Barder (Caluori Intervening)  2 FLR 480,
Smith v Smith (Smith and others Intervening)  2 FLR 432,
Reid v Reid  1 FLR 736 and
WA v The Estate of HA (Deceased) and others  EWHC 2233 (Fam),  1 FLR 1360.
In these cases, one of the parties had died shortly after the order was made, rather than before it was made. Therefore, the matters had already been adjudicated and were considered a cause of action.
Decision and the future
The Judge dismissed the wife’s application and concluded that the law, particularly the Court of Appeal case of Sugden, does not allow for an unadjudicated claim under Part III to survive the death of a spouse, and so the claim could not be continued against the husband’s estate.
As he and the Court of Appeal are bound by Sugden, the Judge allowed, however, a leapfrog application for leave to appeal to the Supreme Court.
It is yet to be seen whether the wife will appeal the decision, despite encouragement from the Judge and the obiter observations by Mostyn J, that there is a clash on the authorities between cases where the death has occurred shortly before trial, and those where death has occurred shortly after trial .
If this case or a case with a similar factual matrix does reach the Supreme Court and they agree with Mostyn J, this could have wide-reaching implications for divorce litigation. It could, in theory, permit spouses to continue financial claims against their ex-spouse’s estate, even after their death. This would or could remedy the clash which Mostyn J concluded was illogical, arbitrary, and capable of meeting out great injustice .
The full judgment can be found here.