The Supreme Court today gave its long-awaited judgment in the case of Unger v Ul-Hasan. It considers the question of whether a claim for financial relief following divorce could be pursued after the death of one of the parties.
Mostyn J had stated that earlier Court of Appeal decisions to the effect that such claims died along with the party pursuing them could no longer be sustained in the modern age and he invited the Supreme Court to overrule those earlier decisions. The Supreme Court accepted the arguments put forward by Andrzej Bojarski (appearing with Tim Amos KC and Joe Rainer, (instructed by Byron James of Expatriate Law)) that in enacting the current law Parliament was clear in that such claims were personal in nature and could only be made between living parties.
The Court agreed with their argument that any change to the law would have to be made by Parliament and not by the courts, not least because careful consideration would need to be given to how such a seismic change would affect inheritance law, bankruptcy law and other areas of law. However, despite reasserting the well-established orthodoxy, the Supreme Court accepted that that the current legal position no longer sits comfortably with the modern law of financial remedies which provides a right to the parties to share in the fruits of the marriage and, arguably, that is a right which ought to survive the death of a party. The Supreme Court suggests that reform of the law should be considered. It may be that this is an issue which the Law Commission adds to its pending review of modern financial remedies law.
Look out for a webinar on the case in the near future. Further details and the judgments can be found here: Unger and another (in substitution for Hasan) (Appellants) v Ul-Hasan (deceased) and another (Respondents) – The Supreme Court
For more information from the family team, contact firstname.lastname@example.org
Involving Andrzej Bojarski