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Sarah Ingram comments on Supreme Court ruling that financial remedy claims do not survive death

Divorced couple in front of rings & documents

Sarah Ingram, a partner in the Family team at Winckworth Sherwood has spoken to eprivateclient on the recent much-anticipated Supreme Court judgment that found that financial remedy claims arising from a foreign divorce do not survive death. Whilst this judgment highlights the gap in the law faced by potentially thousands of English and Welsh residents with international links, the Supreme Court justices have emphasised that it would be for Parliament to fill that gap, rather than the courts to distort the meaning of the words of the relevant statutes to achieve such a radical reform.

The Supreme Court analysed the case law and wording of the Matrimonial and Family Proceedings Act 1984 (the “MFPA”), the act that allows a party who has received no or inadequate financial provision in a foreign court after a foreign divorce to ask the English and Welsh courts to order a “financial top-up” in cases where there are substantial connections to England and Wales, as well as the Inheritance (Provision for Family and Dependents) Act 1975, which usually steps in on the death of an ex-spouse carefully. They concluded that the right to financial relief under the MFPA is a personal rights that is extinguished on death. This is unlike most other causes of action that subsist after a party’s death against their estate. They found that the  Inheritance (Provision for Family and Dependents) Act 1975 had been implemented to address what happens after those personal rights for financial relief under the MFPA are extinguished but that in this case, the 1975 Act could not help Mrs Hasan as her ex-husband had died domiciled outside of England and Wales.  In a jurisdiction that has become known as the “divorce capital of the world”, this gap is surprising and it remains to be seen whether Parliament will have the appetite to address it. The Supreme Court suggested that if it did, such a reform would be “radical”.

Read more in eprivateclient: Supreme Court ruling that claims do not survive death may prompt ‘radical’ reform.

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