Recorded Case – Overseas divorce claim

Aramas Law were part of a significant case in which a financial claim made during a marriage or after divorce expires with the death of the respondent.

This applies equally whether the claim proceeds under Part II following a domestic divorce, or under Part III following a divorce overseas. 

(The judgment is linked below).

Case no: ZC17F00548

Nafisa Hasan (Applicant) v Mahmud Ul-Hasan (Deceased) and lamya Al Shaibah (Respondents).

The hearing took place in the Family Division, Courts England & Wales, at the Royal Courts of Justice, The Strand, London WC2A 2LL.

The presiding judge was Mr. Justice Mostyn.

Brent Molyneaux QC (Dawson Cornwell) represented the Applicant.

Richard Tambling (Aramas Law) represented the Respondents.

The ruling

On 2nd July 2021 the England and Wales High Court (EWHC) ruled that an ex-wife’s unadjudicated claim against her now-deceased ex-husband (under Part III of the Matrimonial and Family Proceedings Act 1984) cannot be continued against his estate. 

Background 

Nafisa Hasan and Mahmud Ul-Hasan (now deceased) married in 1981. They separated in 2006 with Mahmud obtaining a divorce in Pakistan in 2012. The wife alleged that the significant sums accumulated during their marriage were not disclosed to the courts.  

Nafisa brought proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 (Part III) in August 2017 in an attempt to obtain financial redress following their overseas divorce. Further hearings were held however, on 18 January 2021, Mahmud subsequently died at the age of 81. Nafisa was 74. 

The question was: Should Nafisa be able to continue to claim against her ex-husband’s estate?

The question was whether the unadjudicated claim by the wife (under Part III) survives the death of the husband, and if so if it can be continued against his estate. This situation had not arisen before, although claims to the same effect (under Part II of the Matrimonial Causes Act 1973) resulted in judgments that these claims do not survive the death of the respondent.

The question regarding Part III claims had never been considered before and so was, according to the judge, a blank canvas.

The court proceedings

During the court proceedings the Judge assessed the previous Part II hearings. On reflection, he agreed with the point put forward by Mr. Tambling (Aramas Law), that the Part II Jurisprudence must clearly also apply to the Part III application. On balance, he decided it would be ridiculous to decide that the exercise is not identical under the two statutes and that Part II jurisprudence is clearly binding in this case. 

This states unambiguously that a financial claim made during a marriage or after divorce expires with the death of the respondent. This applies equally whether the claim proceeds under Part II following a domestic divorce, or under Part III following a divorce overseas. 

Mr. Molyneaux did not feel bound by the Part II authorities but does feel Part II jurisprudence is clearly applicable to the Part III application. Section 17 of the 1984 Act imports all the powers under ss.23 and 24 of the 1973 Act. Section 18(3) requires the court to exercise those powers in accordance with the terms of s.25 of the 1973 Act. 

https://vlex.co.uk/vid/nafisa-hasan-v-mahmud-870584045 – link to the full judgment can be read here