Can death scupper a divorce settlement? Dubai resident's case 'highlights UK law defect'

The ex-wife of a Dubai resident has had her financial claim against his estate rejected by the UK's highest court because he had died, in a divorce dispute that has led to calls for legal reform.

Nafisa Hasan's proceedings against former husband Mahmud Ul Hasan cannot be pursued further due to his death, the UK's Supreme Court – the country's final court of appeal – concluded last week.

The case highlights a “defect in the law”, but it will be a matter for the country's parliament to decide if intervention is required, Justice Lord Leggat said in a written ruling.

Ms Hasan, who has also since died, married Mr Ul Hasan in 1981. They divorced in Pakistan in 2012.

She made a claim for “financial relief” in the Family Division of the High Court in London, saying she believed the scale of his wealth to be in excess of the £7 million ($8.9 million) he had disclosed.

Court proceedings were delayed due to the Covid-19 pandemic, then Mr Ul Hasan died in Dubai in January 2021, weeks before a hearing.

Ms Hasan died in May 2022, the month after she had been given leave to appeal to the Supreme Court.

In October 2022, five high court justices looked at the case and initially ruled against Ms Hasan's claim.

Case poses 'serious problem'

Byron James, partner at Abu Dhabi law firm Expatriate Law, represented the claimants. He said the ruling that death would void claims was “unfair and unjust”.

“It is about whether the English court has the power to hear a divorce case where one of the partners have died,” Mr James told The National.

“In this case we had an ultra-high net worth individual who developed dementia during proceedings so could not represent himself and so was represented by his second wife – he died after that.

“It is quite common for couples where one party – usually the husband – has most of the assets. During divorce proceedings, the court determines if some of these assets are matrimonial but if someone dies before a court makes the decision then you are not entitled to any of the assets.

“In western countries if someone dies, you don’t get to share in the capital as in this case. This is a very serious problem which is why the highest court in England – the Supreme Court – needs a parliament decision and begs the question, when you marry someone, do you automatically get property rights or only when a court decides? And if someone dies before the decision, then you get nothing, which is unfair and unjust.”

He said that there are steps that could be taken to avoid such a situation arising.

“There are things that you can do – if you have assets then put them in joint names or get life insurance policies or add provisions in wills,” he said.

Mr James represented the respondents pro bono. “In this case, we strongly believed that the respondent needed our help and so we stepped in to provide it,” he said.